FEDERAL LAW ENFORCEMENT

TRAINING CENTERS

OFFICE OF CHIEF COUNSEL

GLYNCO, GEORGIA

LEGAL TRAINING

HANDBOOK

2023

i

Foreword 

The Federal Law Enforcement Training Centers (FLETC) 

serve as the federal government’s leader for, and provider of, 

world-class law enforcement training. The mission of the 

FLETC is to prepare the federal law enforcement community 

to safeguard the American people, our homeland, and our 

values.

In fulfilling this mission, the Office of Chief Counsel (OCC) 

Attorney-Advisors / Senior Instructors provide legal training 

in all areas of criminal law and procedure. While a large part 

of this training focuses on newly hired federal law 

enforcement officers and agents, the OCC also provides 

advanced training for law enforcement and attorneys 

through the Continuing Legal Education Training Program, 

legal updates, and export courses. The FLETC partner with 

more than 90 federal organizations as well as state, local, 

tribal, and international law enforcement.

We offer our Legal Training Handbook to enhance our 

programs. The 2023 edition includes materials for basic 

training, advanced training, and for field use. The Legal 

Training Reference Book is a companion to the Handbook. It 

is our hope that the Legal Training Handbook and Reference 

Book can serve law enforcement students and law 

enforcement officers alike.

While this text provides an exceptional review of important 

legal concepts, you should not limit yourself to this 

publication. An additional resource for federal, state, and 

local law enforcement is the FLETC website: 

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

Located there are various resources including podcasts, 
ii

videocasts, links to upcoming webinars, federal circuit court 

and Supreme Court case digests, and The Federal Law 

Enforcement Informer. The Informer is a monthly 

newsletter that includes United States Supreme Court and 

federal circuit court case summaries covering a variety of 

topics of interest for law enforcement officers.

To receive the Informer free each month or to contact our 

legal instructors with any questions you may have, email 

FLETC-LegalTrainingDivision@fletc.dhs.gov. You can also 

sign up to receive the Informer on the website listed above.

Along with the entire staff at the FLETC Office of Chief 

Counsel, we wish you success in your efforts. We hope to 

continue to provide excellent legal training programs, tools, 

and resources throughout your law enforcement career.

Amanda Barak & Lindsey Brower, Editors
iii

Table of Contents 

Current Legal Instructors .................................................... v

Chapter 1 - Authority and Jurisdiction of Federal Land 

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

Chapter 2 - Constitutional Law......................................... 23

Chapter 3 - Courtroom Evidence ....................................... 55

Chapter 4 - Courtroom Testimony .................................... 95

Chapter 5 - Criminal Law – Introduction ....................... 137

Chapter 6 - Criminal Law – Assault / Bribery ................ 145

Chapter 7 - Criminal Law – Federal Firearms Offenses 155

Chapter 8 - Criminal Law – Federal Drug Offenses ....... 167

Chapter 9 - Criminal Law – Conspiracy and Parties ...... 173

Chapter 10 - Criminal Law – The Entrapment Defense . 189

Chapter 11 - Criminal Law – False Statements ............. 195

Chapter 12 - Criminal Law – Theft and Related Crimes 199

Chapter 13 - Criminal Law – Federal Fraud Statutes ... 207

Chapter 14 - Criminal Law – Human Trafficking .......... 225

Chapter 15 - Electronic Law and Evidence ..................... 235

Chapter 16 – Federal Court Procedures ......................... 299

Chapter 17 - Fifth and Sixth Amendments ..................... 367

Chapter 18 - Fourth Amendment .................................... 413
iv

Chapter 19 - Government Workplace Searches ............. 547

Chapter 20 - Natural Resource Law ............................... 565

Chapter 21 - Officer Liability .......................................... 607

Chapter 22 - Report Writing – Legal Aspects ................. 637

Chapter 23 - Use of Force – Legal Aspects ...................... 649
v

Current Legal Instructors 

Federal Law Enforcement Training Centers 

Office of Chief Counsel 

 

Glynco, Georgia – Artesia, New Mexico – 

Charleston, South Carolina 

Brad Lawrence is the Chief of the Legal Division at the 

Federal Law Enforcement Training Centers (FLETC), 

Glynco, Georgia. Prior to his current position, Mr. Lawrence 

served as the Branch Chief over the Practical Applications 

Branch in the Enforcement Operations Division (EOD). 

Before joining EOD, he was a Branch Chief in the Physical 

Techniques Division and a Senior Instructor in the Legal 

Division, where he was the topical area expert on Use of 

Force and an electronic control device instructor.

Before joining the FLETC, Mr. Lawrence spent 12 years as 

a law enforcement officer, including three years with the 

University of Oklahoma Police Department, where he was 

on the department’s Special Response Team, and one and a 

half years as an inspector with the former Immigration and 

Naturalization Service. He then spent nearly eight years as 

a patrol officer with the United States Park Police’s San 

Francisco Field Office, serving on the Park Police Special 

Event Team and as a field-training instructor.

While he was a patrol officer on the midnight shift, Mr. 

Lawrence attended law school in the evenings. He graduated 

cum laude from the University of San Francisco School of 

Law in 2000, was admitted to the California Bar, and joined 

the U.S. Air Force as a Judge Advocate General (JAG). Mr. 

Lawrence served five years on active duty stationed at 

Lackland AFB, Texas. While in the JAG Corps, Mr. 

Lawrence litigated more than 45 general and special courts-
vi

martial. He still serves as a Lieutenant Colonel in the Air 

Force Reserve, and is currently the Staff Judge Advocate for 

the 927th Air Refueling Wing at MacDill AFB, Florida.

Amanda (Blackledge) Barak is a Branch Chief in the Legal 

Division at the FLETC, Glynco, Georgia. As a former city 

attorney for the City of St. Marys, Georgia, she also served 

as the City’s solicitor and created and managed a Pretrial 

Intervention and Diversion Program for first time nonviolent offenders. While living overseas in Singapore for five 

years, Ms. Barak worked as a public affairs specialist for the 

U.S. Navy where she worked hand in hand with key Navy 

leaders as part of the installation leadership team. She also 

volunteered as a Sexual Assault Prevention and Response 

Victim Advocate for the Navy. Ms. Barak is a registered 

neutral with the Georgia Office of Dispute Resolution, able 

to mediate general civil as well as domestic cases that are 

ordered to mediation by courts within Georgia. She is also a 

trained mediator for the DHS Shared Neutrals Program. Ms. 

Barak attended law school at St. Thomas University School 

of Law in Miami Gardens, Florida, and after graduation 

served on their administration team as the Director of 

Alumni Affairs. She is a member of the State Bar of Georgia 

and the Florida Bar. Ms. Barak is married to a Special Agent 

(Ret.) with the Naval Criminal Investigative Service.

Daniel Schaefer is a Branch Chief in the Legal Division at 

the FLETC in Glynco, Georgia. Prior to working for the 

federal government, he owned and operated a law firm in 

Colorado, focusing on legal defense and administrative 

representation of police officers and other first responders. 

Originally from Germany, Mr. Schaefer immigrated to the 

U.S. in 1999 and became a U.S. citizen in 2014. He had a 

long career as police officer, spanning two countries and 

more than 20 years. In his previous careers, Mr. Schaefer

also held positions in police unions with the goal of 
vii

enhancing police officers’ rights and work conditions. Mr. 

Schaefer received his Juris Doctor at the University of 

Denver Sturm College of Law in 2012.

Michelle D. Alford is a graduate of Georgia State University 

(B.A.), Cleveland Marshall School of Law (J.D.), and 

Cleveland State University (M.P.A.). She began her legal 

career working as an attorney at the Atlanta Legal Aid 

Society and also serving as Assistant Solicitor with the City 

of Atlanta Solicitor’s Office for five years, where she 

prosecuted misdemeanor and city ordinance offenses.

Lawrence Alt is a law enforcement professional with more 

than 30 years of experience. As a Supervisory Special Agent 

with the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF), a prosecutor, police officer, and a Captain 

in the United States Army, Mr. Alt lead numerous complex 

investigations, developed innovating multi-faceted 

strategies to address challenges to law enforcement, and 

facilitated communication, collaboration, and coalitions to 

secure adoption and application of new law enforcement 

techniques. His experience includes the development and 

implementation of training curriculum at the ATF National 

Academy. Mr. Alt has a Juris Doctor (Cum Laude) and a 

Bachelor of Science in Criminal Justice from the University 

of Toledo and is a member of the State Bar of Arizona.

Ken Anderson was an Assistant Solicitor in the Fourteenth 

Judicial Circuit in South Carolina. As an Assistant Solicitor, 

Mr. Anderson prosecuted adult and juvenile defendants for 

crimes including murder, armed robbery, criminal sexual 

conduct, burglary, distribution of drugs, aggravated assault, 

and driving under the influence. He also represented the 

state in civil forfeiture actions. Mr. Anderson taught legal 

classes for officers participating in the South Carolina 

Reserve Officers Training Program. He received his B.A. 
viii

from The Citadel, Charleston, South Carolina and his J.D. 

from Salmon P. Chase College of Law, Highland Heights, 

Kentucky. Mr. Anderson has been an active member of the 

South Carolina Bar since November 1996.

Bruce Cameron is a Senior Legal Instructor with more than 

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

legal instructor with the U.S. Treasury Department and the 

Department of Homeland Security. Mr. Cameron is 

currently assigned to the FLETC’s WAE Division and 

primarily instructs legal courses for the FLETC Legal 

Division. Mr. Cameron has developed and taught many legal 

courses including Constitutional Law, Customs Border 

Search and Seizure Authorities, Courtroom Testimony, 

Money Laundering, Asset Forfeiture and Financial 

Investigations, Customs Fraud, Undercover Operations, 

Basic and Advanced Intelligence, Counter Proliferation 

Investigations, Technical Surveillance, Rights, Warnings 

and Disciplinary Procedures, Privacy Act, and Freedom of 

Information Act. Mr. Cameron is a graduate of the Ohio 

State University (J.D.) and the University of Maryland 

(B.A.)

Dion DeRoia spent eight years in law enforcement, starting 

as a police officer with the Armstrong Atlantic State 

University Police Department. In addition to serving as a 

patrol officer, he was also a field training officer and 

investigator. He also served as a probation officer with the 

Georgia Department of Corrections in the Savannah office. 

During that time, he worked with the U.S. Marshals Service, 

taking part in Operation Falcon. After attending law school, 

Mr. DeRoia served as a prosecutor in the Chatham County 

District Attorney’s Office and the Augusta-Richmond 

County Solicitor General’s Office. He also taught criminal 

justice for Savannah Technical College in Savannah, 

Georgia. Mr. DeRoia has a B.S. and M.S. of Criminal Justice 
ix

from Armstrong Atlantic State University in Georgia and a 

J.D. from Charlotte School of Law in North Carolina. Mr. 

DeRoia has been an active member of the Georgia Bar since 

November 2014. 

Robert J. Duncan is a graduate of Bacone College (B.S. cum 

laude), Oklahoma City University School of Law (J.D.), and 

the University of Tulsa College of Law (LL.M. with honor –

American Indian and Indigenous Law). He is assigned to the 

Artesia Legal Division as an Attorney-Advisor (Instructor) 

and serves as the Editor of the Indian Law Handbook, which 

earned a DHS/OGC Excellence in Training Award in 2016. 

Mr. Duncan has also been a guest lecturer at the 

International Law Enforcement Academy—Roswell (ILEA) 

and has contributed to the Informer and the Legal Division 

Workbook. Prior to joining the FLETC, he was the AttorneyAdvisor and Associate Professor of Transnational Law at 

Bacone College. Mr. Duncan also served as an arbitrator for 

the Cherokee Nation and advised colleges and universities 

on Title IX, VAWA and Clery Act issues in private practice. 

He served as a reserve law enforcement officer in Oklahoma 

for ten years and taught state, local, and tribal law 

enforcement officers in the Oklahoma Council on Law 

Enforcement Training and Education Reserve Academy. 

Mr. Duncan is a member of the Bars of the State of 

Oklahoma, the Cherokee Nation, and the Muscogee (Creek) 

Nation.

Jeff Fluck served on active duty as an Army Judge Advocate 

General. His assignments included prosecutor, chief of 

criminal law, and officer-in-charge of five legal offices. His 

deployments included Desert Shield/Storm to Saudi Arabia 

with the 2d COSCOM and Vigilant Warrior to Kuwait with 

the 24th Infantry Division. He also trained military police at 

Forts McClellan and Leonard Wood. He is a graduate of 

Haverford College and Washington and Lee University Law 
x

School.

Joseph P. Haefner graduated from Cornell University in 

1985. Mr. Haefner served as an Unrestricted Line Officer in 

the U.S. Navy, operating in the Western Pacific while 

forward deployed to Sasebo, Japan, and participated in 

Operation Desert Storm as part of the USS Nimitz Battle 

Group. He left active duty in 1993 and attended Case 

Western Reserve University School of Law, graduating in 

1996. He then entered the private practice of law as an 

attorney in Medina, Ohio, before being appointed as the 

Deputy Law Director and Prosecutor in Stow, Ohio. In 

November 1999, he was elected as the Stow City Law 

Director and served two four-year terms. Mr. Haefner joined 

the FLETC Office of Chief Counsel in June 2008 and is 

physically located at the Artesia, New Mexico, facility, 

providing dedicated legal support in the areas of labor, 

employment, and administrative law. In 2012, he added 

contract and fiscal law to his areas of responsibilities 

supporting the Procurement Branch in Artesia. In 

November 2014, to better support the mission at the Artesia 

Training Facility, Mr. Haefner was promoted to Associate 

Chief Counsel and assumed the supervision and guidance of 

the instructional legal division staff. Mr. Haefner is licensed 

to practice law in Ohio.

Tom Leak served as a Judge Advocate General in the United 

States Navy from 1991 until 2011. His assignments in the 

Navy included two-year tours aboard the USS 

CONSTELLATION (CV-64), and with Carrier Strike Group 

SEVEN embarked on USS JOHN C. STENNIS (CVN-74). 

Mr. Leak also served as a military judge assigned to the 

Southeast Judicial Circuit of the Navy-Marine Court Trial 

Judiciary and as an assistant professor at the United States 

Naval Academy. Following his military service, Mr. Leak 

was as an Associate Legal Advisor to the Principal Legal 
xi

Advisor, United States Immigration and Customs 

Enforcement (ICE) and worked in the District Court 

Litigation Division where he served as Agency Counsel for 

cases and claims brought against ICE and its officers and 

agents. He is a graduate of Brigham Young University (B.A. 

and M.A.) and the University of Idaho (J.D.).

Samuel Lochridge is a graduate of Reinhardt University 

(B.A., magna cum laude) and the University of Arkansas at 

Little Rock (J.D.). He began his career in criminal justice in 

2003 working as a deputy sheriff in Bartow County, Georgia. 

Over the course of his ten-year law enforcement career, Mr. 

Lochridge performed a variety of duties including serving on 

the command staff of two police agencies. Graduating from 

law school in 2014, Mr. Lochridge worked as an assistant 

public defender in the Coweta Judicial Circuit where he 

defended felony criminal cases. He went on to serve as a 

prosecutor in both Fulton and Paulding Counties. Mr. 

Lochridge also served as an attorney advisor in the Social 

Security Administration’s Office of Hearing Operations.

Mary Mara joined the FLETC as an attorney-instructor in 

2018. She served eleven years as an Assistant Prosecuting 

Attorney in Oakland County, Michigan, (1991-2002) where 

she tried more than 100 capital felony cases with a special 

emphasis on the investigation and prosecution of child 

sexual predators. Ms. Mara spent an addition 16 years as 

the chief of civil litigation in Oakland County Michigan 

(2002-2018). In this role, she defended Oakland County, the 

Oakland County Sheriff’s Office, and hundreds of Oakland 

County Deputies in the United States District Court, 

Eastern District of Michigan in Detroit against claims 

alleging civil rights violations brought under 42 U.S.C. § 

1983. Ms. Mara also provided guidance to the Sheriff’s 

Office regarding the proper scope and direction of internal 

investigations, made recommendations regarding 
xii

disciplinary actions, and represented the County at labor 

arbitration and other administrative hearings. She also 

routinely represented the County in the Sixth Circuit Court 

of Appeals in Cincinnati, Ohio, most notably in Hill v. 

Miracle, 853 F.3d 306 (6th Cir 2017). Ms. Mara is a graduate 

of Michigan State University (B.A. 1987), Michigan State 

University College of Law (J.D. 1991 magna cum laude), and 

Western Michigan University Law School (LL.M. Homeland 

and National Security Law, 2017, with high honors).

Liberty Moore was an Assistant District Attorney in the 

Brunswick Judicial Circuit of Georgia. In the Brunswick 

Judicial Circuit, Ms. Moore, prosecuted adult and juvenile 

defendants for crimes including murder, armed robbery, 

home invasion, drug possession and distribution, aggravated 

assault, firearms offenses, sexual offenses, and violations of 

the Georgia Street Gang Terrorism and Prevention Act. She 

also represented the State of Georgia in civil forfeiture 

actions. Ms. Moore taught legal classes to officers, teachers, 

as well as other prosecutors. She received her B.S. and M.S. 

from the University of Georgia’s Warnell School of Natural 

Resources and her J.D. from Florida Coastal School of Law 

in Jacksonville, Florida.

Leanne Polk is an Attorney-Advisor and a certified Senior 

Instructor for the FLETC. She is a graduate of the 

University of Florida, (B.S.), St. Thomas University School 

of Law (J.D.; LL.M., cum laude), and a member of the Florida 

and Texas Bars. While in private practice, she focused on 

issues and regulations pertaining to higher education, 

representing schools, and teaching, while also serving on the 

Florida Bar’s Education Law Committee for seven years. In 

addition, she served as “of counsel” to several corporations 

throughout the U.S. before taking a full-time job teaching 

law. Prior to teaching, she also worked for the maritime 

industry working for a national association, where she 
xiii

monitored federal regulatory activity, developed and 

presented the association’s formal position for inclusion in 

the public rulemaking docket, and served on advisory 

councils within the association. She was later appointed to 

the Federal Maritime Commission, serving as Special 

Advisor/Counsel to a Commissioner, where she researched, 

reviewed, and recommended actions concerning policy, 

protocol, and regulatory issues before the Commission, in 

addition to drafting speeches, dissenting opinions, and

public remarks of the Commissioner.

Major Stephan A. Ryder is detailed to the Legal Division 

from the United States Air Force. Prior to joining the Legal 

Division, Major Ryder served as the Area Defense Counsel 

at Maxwell AFB, AL, and provided defense services to 

Columbus AFB in Mississippi. He provided legal 

representation to clients in a variety of military justice and 

administrative matters, including courts-martial, nonjudicial punishment, and adverse administrative actions. 

Major Ryder received a direct commission as an Air Force 

judge advocate in March 2016. He served as JBSALackland’s Deputy Chief of Military Justice, Chief of 

Litigation, Chief of Adverse Actions, and Chief of 

Discharges. He also served as Chief of Civil Law and 

Adverse Actions at Anderson AFB. Major Ryder is certified 

to practice law before the Supreme Court of Wisconsin and 

the United States Court of Appeals for the Armed Forces. 

Prior to joining the Air Force, Major Ryder owned and 

operated his own law firm, specializing in litigation and 

serving hundreds of clients. He served as a prosecutor for 

the State of Wisconsin. Major Ryder is a graduate of Cornell 

Law School.

Arie J. Schaap is a graduate of the University of North 

Dakota (B.A., Political Science), California Western School 

of Law (J.D.), and George Washington University (LL.M. in 
xiv

International and Comparative Law). He is assigned to the 

Artesia Legal Division as an Attorney-Advisor (Instructor) 

and is a frequent guest lecturer at the Department of State’s 

International Law Enforcement Academy (ILEA) in Roswell, 

New Mexico. Prior to joining the FLETC, Mr. Schaap served 

20 years in the Air Force Judge Advocate General’s Corps, 

retiring as a Lieutenant Colonel in 2020. During his Air 

Force career, he deployed to Iraq and Afghanistan, served as 

Chief of Operations Law for two major commands, Staff 

Judge Advocate and Deputy Squadron Commander for the 

U.S. National Support Element in Norway, and as an 

exchange officer with the British Royal Air Force. For his 

final assignment he served as a division chief and instructor 

at the Air Force Judge Advocate General’s School and taught 

a National Security Law course at Air War College. Mr. 

Schaap is licensed in Utah and Alabama.

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

M.B.A.). After 20 years of military service and graduation 

from the University of South Carolina School of Law (J.D.) 

he began his legal career as a judicial law clerk for the 

Honorable Daniel Pieper of the Ninth Judicial Circuit in 

South Carolina. Subsequently, Mr. Stack served in the 

Ninth Circuit Solicitor’s Office as a Managing Assistant 

Solicitor. His responsibilities included prosecution of crimes 

ranging from murder to drug trafficking to driving under the 

influence. He also supervised and represented the state in 

the estreatment of bond program. Mr. Stack is assigned to 

the FLETC’s Charleston, South Carolina, facility.

Johnnie Story retired from the City of Atlanta Office of the 

Solicitor where he served in many different capacities, 

including Deputy Solicitor. He prosecuted cases for that 

office from September 1988 until May of 2007. He also 

trained and supervised assistant solicitors, trained police 

and code enforcement officers, and addressed community 
xv

complaints. He assisted the City of Atlanta Council and 

Mayor’s offices with drafting proposed city ordinances and 

participated in strategy development sessions with various 

city officials. Mr. Story is a graduate of St. Vincent College 

(B.S.) and Hofstra University Law School (J.D.).

Paul Sullivan is a Senior Instructor in the Legal Division at 

the FLETC, Glynco, Georgia. Mr. Sullivan is a graduate of 

Creighton University School of Law (J.D.) and Buena Vista 

University (B.A.). He served as a police officer for the City of 

Leawood, Kansas before attending law school and becoming 

a prosecutor in Nebraska. In 2010, he accepted a position 

working in Liberia, West Africa, where he worked with the 

Ministry of Justice to train judges, magistrates, and police 

officers on behalf of the U.S. Department of State. In 2013, 

Mr. Sullivan was a Prosecution Justice Advisor as part of 

Combined Joint Interagency Task Force-435, in the National 

Security Courts, Parwan, Afghanistan. He served as an 

Advisor to Afghan Prosecutors in more than 300 trials 

involving defendants charged with terrorism related 

offenses under the Laws of Armed Conflict (LOAC).

Jenny Turner joined the Legal Division in 2019. For more 

than 17 years prior to that, she worked for the United States 

Department of Justice (DOJ), including 15 years as an AUSA 

in the Northern District of Georgia. Ms. Turner specialized 

in investigating and prosecuting complex drug, money 

laundering, financial, and asset forfeiture cases which 

included many multi-agency Organized Crime and Drug 

Enforcement Task Forces (OCDETF) wiretap and grand jury 

investigations as well as prosecutions of international drug 

trafficking and money laundering organizations. Five of 

these cases won OCDETF’s district case of the year award 

between 2004 and 2010. Ms. Turner’s duties also included 

coordinating searches for evidence and forfeitable assets in 

the United States and abroad and litigating appeals in Court 
xvi

of Appeals for the Eleventh Circuit. While working as a 

Money Laundering and Asset Recovery Section (MLARS) 

Trial Attorney in Washington, D.C. between 2017 and 2018, 

Ms. Turner served on teams investigating and prosecuting 

high-profile domestic and international fraud and money 

laundering cases with values ranging from more than 

$10,000,000 to more than $100,000,000 in criminal proceeds.

In her capacity as an Attorney Advisor in the DOJ’s 

Washington, D.C., OCDETF Executive Office between 2016 

and 2017, Ms. Turner acted as a liaison between MLARS and 

OCDETF program managers and gave advice on legislative 

and policy developments affecting financial investigations 

and prosecutions, asset forfeiture, and equitable sharing. 

She also represented OCDETF during the international 

Financial Action Task Force’s (FATF) December 2016 review 

of United States' measures to combat money laundering and 

terrorist financing. Throughout her career at DOJ, Ms. 

Turner developed, planned, coordinated, and executed 

training seminars on topics including forfeiture and money 

laundering, complex case investigation and management, 

and Fourth Amendment for federal, state, and local 

prosecutors, law enforcement officers, financial analysts, 

and investigative professionals. Between 1999 and 2001, Ms. 

Turner worked as a Law Clerk for Joel M. Feldman, United 

States Magistrate Judge for the Northern District of 

Georgia, beginning just after her 1999 cum laude graduation 

from the University of Georgia’s School of Law. She also 

served as an Editorial Board Member on University of 

Georgia Journal of Intellectual Property Law, where she 

published an article as a second-year law student. Before law 

school, Ms. Turner worked for three years as a parole officer 

for the Georgia State Board of Pardons and Paroles, where 

she supervised caseloads of 60-100 state-convicted felons 

and investigated, arrested, and prosecuted violators.
1

Chapter 1 - 

 

Authority and Jurisdiction 

of Federal Land Management Agencies 

 

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

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

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

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

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

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

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

1.5 Subject-Matter Jurisdiction and Statutory Arrest 

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

1.5.1 Specific Statutory Subject-Matter Jurisdiction and

Statutory Arrest Authority .....................................................10

1.5.2 Cross-Designation of Federal Officers .....................11

1.5.3 Jurisdiction Over State Offenses.................................12

1.6 The Code of Federal Regulations (C.F.R.) ................. 14

1.7 Significant Statutory Provisions................................ 15

1.7.1 Lacey Act ......................................................................15

1.7.2 Endangered Species Act...............................................16

1.7.3 Marine Mammal Protection Act..................................16

1.7.4 Archaeological Resources Protection Act...................17

1.7.5 Bald and Golden Eagle Protection Act .......................17

1.8 Administrative Inspection Authority ........................ 18

 

 

 

 

 
2

1.1 Introduction 

This chapter examines the sources and scope of the authority 

and jurisdiction of federal land management law enforcement. 

The chapter addresses both territorial and subject matter 

jurisdiction. The chapter also examines jurisdictional issues 

related to selected offenses that involve federal land 

management agencies. 

1.2 Sources of Authority and Jurisdiction 

The basic source and foundation of all federal law is the United 

States Constitution. While the Fourth Amendment and other 

well-known constitutional provisions affect law enforcement, 

there are also some lesser-known provisions that impact the 

jurisdiction of federal agencies. The Tenth Amendment 

reserves those powers not expressly given to the federal 

government in the Constitution to the States or to the people. 

In section 8 of Article I, exclusive federal jurisdiction is 

established over forts and many other federal facilities. 

Section 3 of Article IV gives Congress the power to make rules 

and regulations regarding the territory and other property 

belonging to the United States.

Federal statutes are the primary source of authority and 

jurisdiction for federal land management agencies. The easiest 

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

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

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

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

the last official publication of the Code is included in 

parentheses: 16 U.S.C. § 3 (2018). If a law passed by Congress 

changes many individual statutory provisions scattered 

throughout the U.S. Code, the easiest way to find the full text 

of the law is the Public Law version. For example, the USA 

PATRIOT Act amended many federal statutes. It would be a 
3

significant task to find each one individually. P.L. 107-56 

contains the full text of the USA PATRIOT Act.

Some congressional statutes authorize specific federal 

agencies to adopt regulations to implement the agency’s 

statutory authority and responsibilities. This is called 

“enabling legislation” because it enables and authorizes the 

agency to adopt regulations for those areas specified in the 

statute. Without such enabling legislation, the agency would 

not have authority to adopt regulations. Some of these 

regulations define crimes and establish punishments for 

violations of the regulation. These violations are enforced as 

misdemeanors in U.S. courts if the enabling legislation 

provides such authority. During the process of adopting 

regulations, proposed regulations and the final regulation are 

published in the Federal Register.

Regulations that are adopted through enabling legislation are 

published annually in the Code of Federal Regulations 

(C.F.R.). Citation to the C.F.R. is similar to the U.S. Code. For 

example, a regulation governing hitchhiking on any National 

Park Service property is found at 36 C.F.R. § 4.31. In formal 

writing, the year of the most recent version is included in 

parentheses: 36 C.F.R. § 4.31 (2022).

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

apply, particularly in relation to Indian lands and jurisdiction 

over coastal waters. 

1.3 Types of Jurisdiction 

There are two types of jurisdiction that govern the 

authority of law enforcement agencies: territorial and 

subject-matter jurisdiction. Territorial jurisdiction relates 

to law enforcement authority based upon the geographic 

location of the offense. Subject-matter jurisdiction relates to 

the specific offenses over which the particular law 
4

enforcement agency has authority. Some agencies have 

broad general subject matter jurisdiction over all federal 

criminal offenses, while others have limited subject matter 

jurisdiction over certain offenses only. 

1.4 Territorial Jurisdiction 

The concept of territorial jurisdiction has three components or 

ramifications in federal law. The first type of territorial 

jurisdiction relates to what authority the federal government 

has over the particular location involved. The second type 

relates to crimes that must occur within the special maritime 

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

third type of territorial jurisdiction, often referred to as 

agency-specific territorial jurisdiction, relates to geographic 

limitations placed upon an agency’s law enforcement officers 

by legislation or agency regulations.

1.4.1 Jurisdiction Over a Particular Geographic Area

There are three general methods through which the federal 

government may acquire jurisdiction over a physical area. One 

method is for the state to grant land within the jurisdiction of 

the state to the federal

government. Whether the state reserves to itself any 

jurisdiction also within that land is determined by the grant 

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

to assume exclusive jurisdiction over land purchased by the 

federal government with the consent of the state legislature. 

Since 1940, neither exclusive nor concurrent jurisdiction is 

automatic; the federal government must expressly accept 

exclusive or concurrent jurisdiction. Exclusive and concurrent 

jurisdiction are explained in the following sections. The third 

method is for the federal government to simply buy or condemn 

land in a state for a federal purpose without any involvement 

of the state.
5

Along with other considerations, the method and terms of the 

acquisition of the property determine the type of federal 

jurisdiction that applies to that particular parcel of land. The 

three types of federal jurisdiction are exclusive, concurrent, 

and proprietary.

a. Exclusive Jurisdiction

In areas of exclusive jurisdiction, only the federal government 

has law enforcement authority. This occurs when the federal 

government has received, through one of the methods outlined 

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

contained within the state’s borders. With exclusive 

jurisdiction, no reservations have been made to the state, 

except that state and local officers have the authority to serve 

criminal and civil process, such as arrest warrants, resulting 

from activities that occurred outside the area of exclusive 

jurisdiction.

b. Concurrent Jurisdiction

Concurrent jurisdiction exists when both the state and federal 

governments have authority over a particular area. Usually 

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

but has reserved to itself the right to exercise its state 

authority. In these jurisdictions, both the state and federal 

governments may enforce their respective criminal laws and 

prosecute those who violate their respective laws.

c. Proprietary Jurisdiction

Proprietary jurisdiction is primarily state jurisdiction, with 

exceptions for federal laws of general application and federal 

laws and regulations specifically applicable to the particular 

type of land involved. Proprietary jurisdiction exists when the 

United States has acquired some right or title to an area 

within a state’s borders but has not acquired any measure of 
6

the state’s authority over the area. In essence, the United 

States has rights generally equivalent to a private landowner. 

In these situations, state law applies within the proprietary 

area to the same extent that it does throughout the remainder 

of the state. However, under the Supremacy and Property 

Clauses of the United States Constitution, federal law 

enforcement officers and agents may also enforce federal 

statutes or regulations enacted to protect these proprietary 

areas.

Two kinds of federal statutes may be enforced even in a 

proprietary jurisdiction:

1. Statutes of General Application

Many federal statutes can be enforced throughout the United 

States or in any other place where the United States has 

jurisdiction. The Constitution empowers Congress to pass such 

statutes in order to protect and control uniquely federal 

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

States to assault a federal officer who is performing federal 

duties. The assailant can be prosecuted whether the crime is 

committed on or off federal property. Other examples of these 

types of statutes include: 16 U.S.C. §§ 3371-3378 (Lacey Act); 

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).

2. Statutes and Regulations Applicable to 

Designated Lands

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

whose application is limited to designated lands only. 

Examples of these statutes include, but are not limited to, 18 

U.S.C. § 41 (hunting, fishing, trapping on wildlife refuges); 18 

U.S.C. § 1852 (removing timber on public lands of the U.S.); 18 
7

U.S.C. § 1853 (cutting or trees on U.S. land or Indian 

Reservations); and 18 U.S.C. § 1854 (trees boxed for pitch or 

turpentine on land belonging to the U.S.). Some sections in 36 

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

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

(trespassing and vandalism); and 36 C.F.R. § 4.23 (DUI). If an 

offense specifies that the crime must be committed in a certain 

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

type of federal land, that offense is not triable in federal court.

1.4.2 Special Maritime and Territorial Jurisdiction

Some federal criminal statutes apply only in the area known 

as the “special maritime and territorial jurisdiction” of the 

United States (SMTJ). These places are defined in 18 U.S.C. § 

7. Several descriptive categories are included within the 

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

provides:

Any lands reserved or acquired for the use of the 

United States, and under the exclusive or 

concurrent jurisdiction thereof, or any place 

purchased or otherwise acquired by the United 

States by consent of the legislature of the State in 

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

magazine, arsenal, dockyard, or other needful 

building.

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

SMTJ is where the United States has either exclusive or 

concurrent jurisdiction over that area. Other places and areas 

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

• High Seas and other waters... not under the jurisdiction 

of a state;

• Vessels owned in whole or part by the U.S., U.S. citizens, 
8

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

possession of the U.S. when the vessel is in such waters;

• Aircraft owned in whole or in part by the U.S., U.S. 

citizens;

• U.S corporations, or any state, territory, district, or 

possession of the U.S. when the aircraft is flying over 

these waters;

• Waters of the Great Lakes and the St. Lawrence River;

• Islands, rocks, or keys containing guano if designated by 

the President; and

• Spacecraft while in flight.

If an offense specifies that the crime must be committed in the 

SMTJ and the crime was not committed in the SMTJ of the 

United States, that offense is not triable in federal court.

1.4.3 Agency-Specific Territorial Jurisdiction

The third category of territorial jurisdiction is agency-specific 

territorial jurisdiction. Some criminal statutes specifically 

prohibit crimes on certain federal lands. For example, 18 

U.S.C. § 41 prohibits unauthorized hunting in wildlife refuges. 

As already discussed, Congress can also pass enabling 

legislation to authorize an agency to adopt regulations 

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

enabling legislation, the agency can adopt regulations 

applying to the federal land it controls and set criminal 

punishments for violations of these regulations. So long as the 

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

regardless of whether the land is an area of exclusive, 

concurrent, or proprietary jurisdiction. For example:
9

• The National Park Service has jurisdiction over offenses 

that occur within the National Park system and over the 

arrest of persons fleeing from that system. 54 U.S.C. §§ 

100101, 100302(a)(3), 102701(a)(2)(b), 100751, and 

320102(l).

• The USDA Forest Service has jurisdiction over offenses 

that occur within the National Forest System, or which 

affect the administration of the National Forest System. 

16 U.S.C. §§ 551, 559, 559c, 559d.

• 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. § 373(b).

• The United States Fish and Wildlife Service and 

National Marine Fisheries Service do not have specific 

geographical boundaries, except as may be defined in 

specific statutory or regulatory provisions for which 

those agencies have subject matter jurisdiction. 16 

U.S.C. §§ 668dd(g), 3375 (b).

• The territorial jurisdiction of Department of Defense 

Land Management Enforcement Officers is determined 

by DOD directives or other regulations.

1.5 Subject-Matter Jurisdiction and Statutory Arrest 

Authority 

 

Subject-matter jurisdiction relates to the specific offenses over 

which a particular law enforcement agency has authority. 

Statutory provisions conveying authority and jurisdiction to 

particular federal agencies may specify certain offenses over 
10

which that agency has subject matter jurisdiction. Federal 

statutes also give specific statutory arrest authority to law 

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

define the primary mission of the agency’s law enforcement 

officers. 

It follows that the agency statute which specifies statutory 

arrest authority is the primary source of arrest authority for 

officers of each agency. For example, Tennessee Valley 

Authority (TVA) officers are empowered to:

maintain law and order and protect persons and 

property...on any lands or facilities owned or 

leased by the corporation or within such adjoining 

areas in the vicinity of such lands or facilities as 

may be determined by the TVA Board of Directors 

under statutory guidelines and on other lands or 

facilities in certain specified situations.

They are also authorized to arrest persons fleeing TVA lands 

or facilities. 16 U.S.C. § 831c-3.

1.5.1 Specific Statutory Subject-Matter Jurisdiction and

Statutory Arrest Authority

Some land management agencies and their officers have full 

law enforcement power and statutory arrest authority over all 

federal offenses, but only within the limited territorial 

jurisdiction of that agency. For example, National Park 

Service officers generally have the authority to arrest violators 

for all federal offenses committed in their presence or all 

federal felonies they have reason to believe were committed, 

as long as those offenses were committed in the National Park 

System. National Park Service officers also have the authority 

to arrest persons fleeing the park system to avoid arrest. 54 

U.S.C. § 102701.
11

By contrast, other agencies and their officers have no 

geographic limits on the power to arrest, but only may make 

arrests for offenses generally within their agency’s purview. 

For example, law enforcement officers assigned to the National 

Forest Service “have authority to make arrests for the 

violation of the laws and regulations relating to the national 

forests.” 16 U.S.C. § 559. Other agencies and their officers, 

however, have specific statutory or regulatory authority (and 

statutory arrest authority) only for certain specified offenses. 

For example, the National Marine Fisheries Service has 

approximately 37 different federal laws which it enforces.

Given these variations, as well as the realities of congressional 

revisions to the statutes and cross-designation (discussed 

below), land management officers must stay current on their 

statutory arrest authority and be alert for changes to it.

1.5.2 Cross-Designation of Federal Officers

In the land management law enforcement context, because of 

the overlap of functions among the various agencies, officers 

will frequently be cross-sworn to enforce another federal 

agency’s statutes. First, the statute to be enforced must 

authorize an agreement between: (1) the agency given 

enforcement authority by the statute and (2) the agency which 

employs the officer to be cross-sworn. Second, there must be 

an agreement between the two agencies concerned. For 

example, a TVA officer may be cross-sworn as a U.S. Fish and 

Wildlife Service (USFWS) officer, thereby acquiring the 

additional authority to enforce crimes within the subjectmatter jurisdiction of the USFWS. Similarly, the Secretary of 

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

federal agency personnel to enforce Forest Service laws and 

can permit Forest Service personnel to assist other federal 

agencies pursuant to appropriate agreements. 16 U.S.C. § 

559g.
12

1.5.3 Jurisdiction Over State Offenses

Another potential source of authority for land management 

officers is state law.

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

The Assimilative Crimes Act makes state law applicable to 

conduct occurring on federal land in certain situations. The 

following criteria must be met:

1. The U.S. has exclusive or concurrent jurisdiction,

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

3. There is an applicable state law.

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

the defendant in federal court as a federal offense. The Act 

does not apply if there is a federal law that covers the conduct 

or in areas of proprietary jurisdiction. A more in-depth 

discussion of the Assimilative Crimes Act can be found in the 

Criminal Law chapters of this book.

b. State Peace Officer Authority

In some states, federal law enforcement officers of specified 

federal agencies have limited or complete state peace officer 

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

enforcement officers with federal arrest authority who are 

authorized to carry a firearm also have state arrest authority 

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

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

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

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

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

working to determine whether state peace officer status exists. 
13

It is also important to know your agency’s policy regarding 

state peace office authority. In particular, agency personnel do 

not exercise state peace officer authority unless their agency’s 

policy permits them to do so.

c. Cross-Designation as a State or Local Officer

Officers may acquire state jurisdiction by being deputized as a 

deputy sheriff or other state or local officer under the 

appropriate state law.

Again, it is also important to know your agency’s policy 

regarding cross-designation as a state or local officer. Agency 

personnel do not exercise this authority unless the agency’s 

policy permits them to do so.

d. 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 any person to make an 

arrest for a felony. Some states require the crime to be 

committed in the person’s presence while other states do not. 

Some states only permit a limited detention rather than an 

arrest. State law may limit or prohibit citizen’s arrests for 

misdemeanors. In addition, offenses that are covered may 

differ widely. While more than one state may allow a citizen’s 

arrest for a breach of the peace, they can differ greatly on what 

constitutes a “breach of the peace.” Officers must know the 

law of the particular state in which they are working to 

determine whether citizen’s arrest or detention authority 

exists. Using citizen’s arrest authority to make an arrest often 

will be beyond the scope of the officer’s federal employment 

and can potentially expose the officer to personal civil liability 

if the arrest is improperly executed. For more information on 

this topic, see the discussion, “The Federal Law Enforcement 
14

Officers ‘Good Samaritan’ Laws” section in the Officer Liability 

chapter of this book. In sum, arresting under citizen’s arrest 

powers is a high- risk procedure and should be used as a last 

resort.

1.6 The Code of Federal Regulations (C.F.R.) 

Unless Congress passes legislation enabling an agency to 

adopt regulations and enforce them, agencies cannot do so. 

When enabling legislation exists authorizing a federal agency 

to adopt regulations, most agencies adopt detailed regulations 

to implement their statutory authority. The enabling statutes 

often permit considerable flexibility in rule making. Final 

regulations currently in force are published annually in the 

C.F.R. Many of the violations enforced by land management 

law enforcement officers are violations of these regulations.

For example, under 43 U.S.C. § 1733(a), the Secretary of the 

Interior has the following statutory rulemaking authority for 

public lands:

The Secretary shall issue regulations necessary to 

implement the provisions of this Act with respect 

to the management, use, and protection of the 

public lands, including the property located 

thereon. Any person who knowingly and willfully 

violates any such regulation which is lawfully 

issued pursuant to this Act shall be fined no more 

than $1,000 or imprisoned no more than twelve 

months, or both. 

For the National Park Service, the Secretary of Interior has 

the following statutory rulemaking authority: “The Secretary 

shall prescribe such regulations as the Secretary considers 

necessary or proper for the use and management of system 

units.” 54 U.S.C. § 100751. See also 54 U.S.C. § 320102(l).
15

Applying the broad rulemaking authority permitted by 

enabling legislation, federal regulations frequently detail the 

authority of these agencies into many areas not specifically 

addressed by congressional statute. Agencies can use their 

rulemaking authority to create regulations that adopt state 

laws. Particularly in such areas as motor vehicle laws, hunting 

and fishing laws, and vessel operation and safety laws, 

agencies often adopt as federal regulations those state laws 

that do not conflict with federal law. The agency’s federal 

enabling legislation sets the maximum punishment for 

violation, regardless of the punishment under the state law. 

1.7 Significant Statutory Provisions 

Land management agencies often have common interests in 

enforcing laws that may be under the jurisdiction of another 

land management agency. Several significant statutory 

provisions related to land management, discussed further in 

the Natural Resource Law chapter, allow for crossdesignation, although some do not.

1.7.1 Lacey Act

The Lacey Act prohibits trafficking in fish, wildlife, or plants 

that are taken, possessed, transported, or sold in violation of 

any U.S. or Indian tribal law, treaty, or regulation as well as 

in violation of foreign law. The Act creates civil and criminal 

penalties. The Act does not include activities regulated by the 

Magnuson Fishery Conservation and Management Act, the 

Tuna Conventions Act, the Atlantic Tunas Convention Act, or 

any activity involving the harvest of highly migratory species. 

While the USFWS is a primary enforcer of Lacey Act 

violations, enforcement authority is assigned to agencies of the 

Departments of Interior, Commerce, Transportation, and 

Treasury. In addition, any of the appropriate lead agencies 

may, by agreement, use the personnel, services, and facilities 

of any other federal agency or any state agency in the 
16

enforcement of the Lacey Act. Thus, whether as part of those 

Departments or by agreement, USFWS, National Marine 

Fisheries Service (NMFS), or the Animal and Plant Health 

Inspection Service are involved in Lacey Act enforcement.

1.7.2 Endangered Species Act

The Endangered Species 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. The primary agencies for enforcement 

of the Endangered Species Act are the Department of Interior 

(through the USFWS) and, for marine species, the Department 

of Commerce (through the NMFS). Generally, USFWS 

manages land and freshwater species, while the NMFS 

manages marine species, including anadromous salmon. For 

some plant importation/exportation issues, the Department of 

Agriculture is responsible. The U.S. 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.

1.7.3 Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA) prohibits, with 

certain exceptions, the taking of marine mammals in U.S. 

waters and by U.S. citizens on the high seas, and the 

importation of marine mammals and marine mammal 

products into the U.S. The Departments of the Interior and 

Commerce are responsible for different aspects of this law. The 

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

The Department of Commerce handles importation of these 
17

species. The appropriate lead agency may, by agreement, use 

the personnel, services, and facilities of any other federal 

agency in the enforcement of the Marine Mammal Protection 

Act. Either Secretary may also designate officers and 

employees of any state or of any possession of the United 

States to enforce the act.

1.7.4 Archaeological Resources Protection Act

The Archaeological Resources Protection Act (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 

Act, the archaeological resources recovered, and any 

instruments used to commit the violations, may be forfeited. 

The Act also provides restrictions against trafficking in 

illegally obtained artifacts. Each agency having archaeological 

resources on public lands under its jurisdiction has authority 

over those lands but may also ask the Department of the 

Interior to assume authority. The Indian Arts and Crafts Act 

prohibits misrepresentation in the marketing of Indian art and 

craft products within the U.S. The Indian Arts and Crafts 

Board has responsibility for overseeing the implementation of 

the Act. Statutory authority allows the Board to refer an 

alleged violation of the Indian Arts and Crafts Act to any 

federal law enforcement officer for appropriate investigation. 

This investigation can happen regardless of whether the 

federal law enforcement officer receives a referral.

1.7.5 Bald and Golden Eagle Protection Act

The Bald and Golden Eagle Protection Act (BGEPA) prohibits 

anyone from taking, possessing, or transporting a bald eagle 

or golden eagle, or the parts, nests, or eggs of such birds 

without prior authorization. This includes inactive nests as 

well as active nests. Rewards are provided for information 
18

leading to arrest and conviction for violation of the BGEPA. 

The Department of the Interior has the primary responsibility 

for enforcement of this Act. Enforcement authority may be 

delegated also to state fish and wildlife authorities, but 

notably, not to other federal agencies. The bald and golden 

eagle are also protected by the Migratory Bird Treaty Act 

(MBTA), which implements four international conservation 

treaties that the U.S. entered into with Canada, Mexico, 

Japan, and Russia. The MBTA is intended to ensure the 

sustainability of populations of all protected migratory bird 

species.

1.8 Administrative Inspection Authority 

If authorized by a federal statute or regulation, federal 

agencies may set up a reasonable regulatory inspection 

scheme and exercise administrative inspection authority. 

Inspections are constitutionally permitted because they are an 

effective way for the government to accomplish legitimate 

government missions besides traditional law enforcement.

The enforcement of many land management agency 

regulations is dependent upon inspection authority. Fishing, 

hunting, and boating are among the areas subject to 

inspection. For example, the National Park Service provision 

below, written in a question-and- answer format, illustrates 

the typical inspection authority for land management 

agencies.

36 C.F.R. § 3.4 – For what purposes may my vessel 

be inspected?

(a) An authorized person may at any time stop 

and/or board a vessel to examine documents, 

licenses or permits relating to operation of the 

vessel, and to inspect the vessel to determine 

compliance with regulations pertaining to safety 
19

equipment, vessel capacity, marine sanitation 

devices, and other pollution and noise abatement 

requirements.

(b) An authorized person who identifies a vessel 

being operated without sufficient lifesaving or 

firefighting devices, in an overloaded or other 

unsafe condition, as defined in United States 

Coast Guard regulations, or in violation of a noise 

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

the operator to suspend further use of the vessel 

until the condition is corrected.

As this provision illustrates, administrative inspections do not 

require a search warrant. Nor must an officer have reasonable 

suspicion or probable cause that a violation has occurred. 

Generally termed “inspections,” these types of administrative 

searches take place in a variety of different forums and are 

conducted on both personal and real property.

To be valid, an inspection statute: must be limited in time, 

place, and scope; should apply to all facilities within a 

designated industry as specifically defined; should contain 

specific standards with which the operator must comply; and 

should provide a specific mechanism for accommodating the 

special privacy concerns the owner may have. 

A warrantless inspection of a closely regulated business is 

reasonable if:

1. There is a substantial governmental interest;

2. A warrantless inspection is necessary to further 

the regulatory scheme; and

3. The statutory inspection program, in terms of 

certainty and regularity of its application, provides a 
20

constitutionally adequate substitute for a warrant.

When these requirements are met, the courts have upheld 

inspection programs as reasonable regulatory schemes. 

Criminal evidence discovered through such an inspection is 

admissible. However, when an inspection is conducted as a 

ploy or subterfuge to locate and seize criminal evidence, that 

evidence will not be admissible because it violates the Fourth 

Amendment.

Fish and game checkpoints at hunting and fishing areas are 

reasonable because fish and game are highly regulated 

activities. Wildlife is a natural resource uniformly subject to 

pervasive regulation by all the states and the federal 

government with respect to which fish, animals, or birds may 

be taken, when they may be taken, and in what quantity. 

There are criminal offenses for exceeding the limits for taking 

fish and game or killing protected animals and birds. 

Therefore, game wardens and other officers have the authority 

to establish checkpoints for the enforcement of fish and game 

laws if the stop is conducted in a manner that is reasonably 

related to the enforcement goal. If it cannot be shown that the 

stop is reasonably related to the enforcement goal, the stop 

may be a violation of the Fourth Amendment.

Individual inspections and vehicle checkpoints by federal law 

enforcement officers to enforce applicable regulations must be 

conducted in accordance with agency regulation or policy.

Officers conducting inspections and checkpoints are limited by 

the agency’s reasonable regulatory scheme in two ways. First, 

the officer’s discretion to decide who will be inspected is 

limited. In the context of vehicle checkpoints, this is often done 

by randomizing the choice of which vehicle to stop or by 

stopping every vehicle passing through during a specific 

timeframe. Second, the scope and extent of the officer’s 
21

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

example, an officer conducting an inspection during antlered 

deer season to ensure that hunters are taking legal bucks 

(instead of illegal does) is not able to check a vehicle’s glovebox. 

In sum, the government’s discretion is limited and scoped by 

the reasonable regulatory scheme. It follows that the 

authority to conduct a boat safety inspection could not be used 

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

briefcase on board based on a groundless hunch that it might 

contain drugs.

Inspections are also discussed in the Fourth Amendment 

chapter of this book. 
22

 
23

Chapter 2 - 

 

Constitutional Law 

2.1 Historical Background ............................................... 24

2.2 Framing the Constitution of the United States ........ 24

2.3 Organization of the Federal Government .................. 25

2.3.1 The Legislative Branch ...............................................26

2.3.2 The Executive Branch .................................................26

2.3.3 The Judicial Branch.....................................................26

2.3.4 A System of Checks and Balances ..............................26

2.4 The Constitution and the Bill of Rights .................... 28

2.4.1 First Amendment.........................................................28

2.4.2 Fourth Amendment .....................................................35

2.4.3 Fifth Amendment.........................................................36

2.4.4 Sixth Amendment........................................................39

2.4.5 Eighth Amendment .....................................................41

2.4.6 Fourteenth Amendment..............................................41

2.5 Criminal Justice Components from the Constitution 42

2.6 Controlling Speech Under the First Amendment ..... 42

2.6.1 Generally ......................................................................42

2.6.2 Government Action......................................................43

2.6.3 Expression....................................................................43

2.6.4 Government Restrictions.............................................44

2.6.5 Unprotected Conduct...................................................47

2.6.6 Unprotected Speech.....................................................48
24

2.1 Historical Background 

Americans lived under colonial charters for over a century 

before they declared their independence from England. The 

purpose and effect of the Declaration of Independence by the 

thirteen colonies was to create thirteen separate and 

individual sovereigns (states) and to present a united front 

against the British Crown.

After the ratification of the Declaration of Independence, 

establishing the thirteen colonies as “united” states, it became 

apparent that a central government was necessary to carry on 

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

Confederation were written during the early part of the 

American Revolution and approved in 1781.

Deliberately kept weak by the Articles’ authors, the national 

government, reserved much of the power to the states. For 

example, some states adopted laws that hampered trade by 

discriminating against goods and services from other states. 

To retaliate, some states enacted taxes on commerce, which 

only frustrated trade among the other states.

By the mid 1780’s, it was clear that the federal government 

under the Articles of Confederation had to be reorganized into 

a more viable form. In May of 1787, delegates from the states 

met in Philadelphia to revise the Articles of Confederation. 

However, the delegates soon recognized that simply revising 

the Articles would not work. They undertook to write a new 

document, the United States Constitution.

2.2 Framing the Constitution of the United States 

The United States Constitution is the most important 

document in American governance. It is the foundational 

cornerstone of the citizen/government relationship. The 

Constitution defines the rights, privileges and responsibilities 

of the people and limits government authority over the people. 
25

It is a contract between the people and the federal government. 

The people are bound by the laws of the federal government 

and the federal government is bound by the provisions and 

principles of the Constitution.

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

government is one of enumerated powers, which means that 

the government can only exercise powers granted to it by the 

Constitution. Article I Section 8 of the Constitution grants to 

Congress the authority to make laws regarding specific 

subjects (these are called the enumerated powers). However, 

Congress can pass legislation concerning other subjects not 

expressly authorized by the enumerated powers in Article I, 

Section 8, as long as one of the enumerated powers is used as 

its constitutional anchor. For example, regulating firearms is 

not an enumerated power provided to Congress. However, 

Congress by using the Commerce Clause (an enumerated 

power), can regulate firearms via legislation, as long as the 

firearms are involved in interstate commerce.

Federal law enforcement officers must affirm their personal 

commitment to this contract between the people and the 

government. That is why federal officers and agents take a 

solemn oath to preserve, protect and defend the Constitution 

of the United States of America. They must know 

constitutional law, not only to protect the rights of one citizen 

from infringement by another, but also to prevent government 

from infringing on the rights of the people.

2.3 Organization of the Federal Government 

 

The authors of the Constitution divided the federal 

government among three separate, but equal, branches of 

government: the Legislative, Executive and Judicial Branches.
26

2.3.1 The Legislative Branch

The Legislative Branch (Congress) consists of the House of 

Representatives and the Senate, together forming the United 

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

some of which include the power to collect taxes, regulate 

foreign and domestic trade, establish post offices and post 

roads, and establish federal courts inferior to the United 

States Supreme Court.

2.3.2 The Executive Branch

The Executive Branch (President) is established in Article II 

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

duties include the ability to enter into treaties with foreign 

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

federal crimes, and appoint members of the administration, 

such as cabinet members and United States Attorneys. The 

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

2.3.3 The Judicial Branch

The Judicial Branch, consisting of the United States Supreme 

Court and the lower federal courts, interprets laws through its 

decisions as provided in Article III. The Constitution is unique 

in that Article III establishes only one court, the Supreme 

Court. All inferior courts are created by an act of Congress. 

The Supreme Court has the power to declare laws 

unconstitutional and is the final authority on matters of 

constitutional interpretation.

2.3.4 A System of Checks and Balances

In order to ensure that no single branch of government 

becomes excessively strong, a system of checks and balances 

creates complex interrelationships between the branches. 

Each branch exercises a certain degree of control over the 
27

other two. There are many examples of this complex 

arrangement, but the following are a few of the more 

important ones: 

• The Congress can pass laws, but the President may veto 

them. 

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

the President’s veto. 

• The President appoints Justices to serve on the Supreme 

Court, but the Senate must approve them. Once 

confirmed, the Justices serve for life or as the 

Constitution states, holding “their offices during good 

Behaviour.” 

• The President can be impeached and tried by the Senate, 

as can all federal judges, including Justices of the 

Supreme Court.

• The Congress can establish federal courts inferior to the 

Supreme Court and with certain limitations can 

regulate the appellate jurisdiction of the Supreme Court.

• Only Congress can appropriate the funds necessary to 

run the government. 

• Congress can pass laws and even appropriate the money 

to run the government, but the President can choose not 

to implement and enforce the laws. 

• The Supreme Court can declare laws passed by Congress 

and signed by the President to be unconstitutional. 

Although there is no specific authority in the 

Constitution to declare laws unconstitutional, in 

Marbury v. Madison, 5 U.S. 137 (1803), the Supreme 

Court declared that a law that is repugnant to the 
28

Constitution is void.

2.4 The Constitution and the Bill of Rights 

The Constitution provides many safeguards through the 

checks and balances system against an excessively strong and 

potentially abusive central government. However, many 

scholars speculate the Constitution would not have been 

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

new government would be the passage of the first ten 

Amendments to the Constitution, often referred to as the Bill 

of Rights. With the exception of the Ninth and Tenth 

Amendments, the Amendments are specific guarantees of 

individual liberties belonging to the people. They proscribe 

government conduct that infringes on the rights of the people. 

These Amendments apply only to government conduct.

2.4.1 First Amendment

The First Amendment protects personal belief, opinion, and 

action. It addresses four basic freedoms that are necessary for 

a free society functioning within a democratic government. 

Those rights are freedom of religion, freedom of speech, 

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

and to petition the government. It has generally been held by 

the Supreme Court that a balance is required between First 

Amendment freedoms and the powers of a government to 

govern effectively. Supreme Court decisions throughout the 

20th and 21st century balanced First Amendment rights with 

FIRST AMENDMENT 

Congress shall make no law respecting an establishment 

of religion, or prohibiting the free exercise thereof; or 

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

right of the people peaceably to assemble, and to petition 

the Government for a redress of grievances. 
29

the requirements of public order. As a result of these decisions, 

fighting words, true threats, and obscenity are not afforded 

First Amendment protection. 

a. Religion 

Two clauses in the Constitution, the establishment clause and 

the free exercise clause, protect freedom of religion. The 

establishment clause prohibits the establishment of a national 

religion or the preference of one religion over another. The 

clause was intended to erect a wall of separation between 

church and state. Laws enacted by the government must have 

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

effect that neither advances nor inhibits religion. Even having

only one secular purpose is sufficient to meet this “purpose” 

test. United States circuit courts have found the 

commemoration of the nation’s heritage was a sufficient 

secular purpose in placing “In God We Trust” on currency. 

Mayle v. United States, 891 F.3d 680, 686 (7th Cir. 2018). 

Additionally, the establishment clause must be interpreted by 

reference to historical practices and understanding. The line 

that courts and governments must draw between the 

permissible and the impermissible must accord with history 

and faithfully reflect the understanding of the Founding 

Fathers. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 

(2022).

The free exercise clause prevents the government from 

interfering with religious beliefs. However, religious practices 

may be limited and must be balanced against broader social 

values. A law with a legitimate secular purpose (not targeted 

at religion) may incidentally affect religious practices without 

violating the First Amendment. For example, practitioners of 

Native American religious rites challenged a law that made it 

illegal to possess peyote, which is a controlled substance 

employed in religious ceremonies. The Supreme Court held 

that the law was constitutional. Congress responded to this 
30

holding by passing 42 U.S.C. § 2000bb and 42 U.S.C. § 1996A. 

These Acts restrict government action which would 

substantially burden religion, and they provide a legal 

exception for Native American religious practices involving 

peyote. Under the free exercise clause, when the government 

impinges upon the religious exercise it must normally satisfy 

at least “strict scrutiny,” showing that its restriction on a 

person’s right serves a compelling governmental interest and 

are narrowly tailored to that end. Kennedy v. Bremerton Sch. 

Dist., 142 S. Ct. 2407 (2022). 

b. Speech 

The people have a First Amendment right to express their 

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

is protected against government interference under the First 

Amendment, unless the government can prove that it falls 

within an unprotected category. Some of those unprotected 

categories of speech are outlined below. (A more complete 

discussion is found later in this chapter.) 

1. Fighting Words 

Fighting words are words that tend to incite an immediate 

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

invitation to fight. Uttering fighting words to another person 

can be a crime. Profane words alone, unaccompanied by any 

evidence of violent arousal, are not fighting words, and, 

therefore, are protected speech. 

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

all, with respect to speech directed at public officials such as 

law enforcement officers. Officers are expected to exercise a 

higher degree of restraint than the average citizen. Moreover, 

Americans have a constitutional right to criticize their 

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

Orleans, 415 U.S. 130 (1974), the Supreme Court found 
31

unconstitutional a municipal ordinance that made it a crime 

“for any person wantonly to curse or revile or to use obscene or 

opprobrious language toward or with reference to any member 

of the city police while engaged in the performance of duty.” 

Freedom to verbally oppose or challenge police action without 

risking arrest is one of the principal characteristics by which 

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

“contempt of cop” is not a crime.

2. True Threats

A true threat is a crime. To be a true threat, first the defendant 

must intentionally and knowingly communicate a threat, a 

clear or present determination or intent to injure someone 

presently or in the future. Secondly, the speaker must make 

the threat under circumstances that would cause a reasonable 

person to believe that he is serious about executing the threat. 

Making threats to the President of the United States is a crime 

under 18 U.S.C. § 871.

3. Advocating Imminent Lawless Action

Historically, the people have not only criticized the United 

States, but some have advocated its laws be ignored and 

government overthrown. Sometimes called political speech, 

advocacy of this nature in public forums is protected under the 

First Amendment, unless the speech explicitly or implicitly 

encourages violence, it was the speaker’s intent that the 

speech would result in violent or lawless action, and that 

imminent violence or lawlessness is a likely result of the 

speech.

4. Speech Constituting a Clear and Present Danger

Although the test of whether speech poses a clear and present 

danger was further narrowed by the Supreme Court to include 

inciting imminent lawless action as discussed above, 
32

knowingly conveying false information about an impending 

peril, such as yelling “fire!” in a crowded theatre or yelling 

“bomb!” on an airplane, creates a likelihood of danger to 

people. The most stringent protection of speech would not 

protect words causing a panic. 

5. Obscenity 

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court 

defined obscenity as “whether to the average person, applying 

contemporary community standards, the dominant theme of 

the material taken as whole appeals to prurient interests.” 

“Prurient” describes material that has a tendency to incite 

lustful thoughts or unwholesome sexual desires. It is grossly 

offensive to modesty, decency, or propriety. It shocks the moral 

sense, because of its vulgar, filthy, or disgusting nature. It 

must violate community standards. For example, the First 

Amendment does not protect possession of child pornography. 

Child pornography includes depictions of “actual children” 

under the age of 18 engaged in sexually explicit acts. Ashcroft 

v. Free Speech Coalition, 535 U.S. 234 (2002).

Challenges in enforcing obscenity laws exist today due to the 

strong presence of the internet and social media. Identifying 

community standards which to judge speech by can be 

convoluted, as some materials deemed “obscene” in one 

community may be accessed from virtually anywhere. 

6. Fraudulent Misrepresentation 

Fraud, libel, slander, and perjury are not protected under the 

First Amendment. A fraud is a misrepresentation of a material 

fact and is intended to cheat people out of their property. Libel 

and slander are false and malicious statements about another. 

Perjury is lying under oath. 
33

c. Peaceful Assembly

A speaker does not have a First Amendment right to express 

his views on another person’s private property. A grocery store 

owner, for example, can stop an anti-war activist’s speech in 

his store, and if the activist refuses to leave, can sue or seek to 

prosecute for trespassing.

Non-public forums are those under government control, but 

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

Centers (FLETC) is another. The government can prohibit 

demonstrations on FLETC for security reasons and to reduce 

student distractions.

Public forums are where the people have traditionally 

exercised First Amendment freedoms. Public forums include 

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

has jurisdiction over one of the nation’s most-frequented public 

forums - the National Mall.

The people, however, do not have unfettered access to public 

forums. Demonstrators cannot march down a public street 

anytime they wish. The government can require 

demonstrators to obtain a permit. Permits may restrict the 

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

manner restrictions have the incidental by-product of 

interfering with the speaker’s message. However, they will be 

upheld if they serve a significant government purpose and are 

not intended to restrict the speaker’s content of the message.

d. Electronic Recording of Law Enforcement Officers

The First Amendment protects the right of the people to record 

matters of public interest. It is a long standing First 

Amendment freedom of speech principle that people have a 

right to videotape public officials in the conduct of their official 
34

business. This right is not limited to reporters and journalists, 

but is the right of all citizens.

Private citizens may photograph, videotape, and record police 

officers performing their duties in traditional public places, 

including sidewalks, streets and locations of public protests. 

The right to record police activity also includes areas where 

individuals have a legal right to be present, such as the 

individual’s home or business, and common areas of public and 

private facilities and buildings.

The right to record police officers carrying out their duties is 

limited to situations where the recording of the police activity 

does not interfere with the performance of the officer’s duties. 

In general, the police cannot interfere with the recording 

unless the actions of the individual jeopardize the safety of the 

police or others, violate the law, or incite others to violate the 

law. The officer cannot search, seize, delete, or destroy the 

recording or device without a search warrant.

The officer should not threaten, intimidate, or otherwise 

discourage an individual from recording police enforcement 

activities or intentionally block or obstruct cameras or 

recording devices. If the bystander’s actions approach the level 

of interference, the officer should recommend to the bystander 

a less intrusive or safer location from which the recording, 

photography, or observation of the police activity may be 

conducted.
35

2.4.2 Fourth Amendment

The Fourth Amendment prohibits unreasonable government 

searches and seizures. These protections are covered in more 

detail in the Fourth Amendment chapter of this book; however, 

some general principles are described below.

The Fourth Amendment protects “the people,” meaning those 

having a substantial connection to the United States. People 

inside the United States, its territories, or its possessions have 

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

citizens receive Fourth Amendment protections, whether in 

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

For example, the Fourth Amendment does not apply when the 

U.S. Government searches a foreign national’s property in a 

foreign country.

A “search” under the Fourth Amendment is a government 

intrusion that adversely impacts upon a person, house, paper 

or effect, or into a place where a person has a reasonable 

expectation of privacy. When the government trespasses on 

private property with the intent to obtain information, a 

government search has been conducted. The Fourth 

Amendment does not regulate searches by private citizens. It 

applies only to government conduct.

FOURTH AMENDMENT 

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

houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no 

Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or 

things to be seized. 
36

A person or their property may be “seized” under the Fourth 

Amendment. Common seizures for law enforcement officers 

are arrests, detainments, and taking personal property as 

evidence.

2.4.3 Fifth Amendment

Many concepts covered under the Fifth Amendment will be 

addressed in later legal courses, but several terms that deserve 

explanation are addressed here.

a. Double Jeopardy

Double jeopardy means to be tried twice, by the same 

sovereign, for the same offense. The Constitution prohibits 

prosecutors from repeated prosecutions until a conviction is 

ultimately obtained. Once the accused is acquitted, the same 

sovereign cannot retry the defendant for the same crime, even 

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

following situations, however, are NOT double jeopardy:

FIFTH AMENDMENT 

No person shall be held to answer for a capital, or 

otherwise infamous crime, unless on a presentment or 

indictment of a Grand Jury, except in cases arising in the 

land or naval forces, or in the Militia, when in actual 

service in time of War or public danger; nor shall any 

person be subject for the same offence to be twice put in 

jeopardy of life or limb; nor shall be compelled in any 

criminal case to be a witness against himself, nor be 

deprived of life, liberty, or property, without due process 

of law; nor shall private property be taken for public use, 

without just compensation. 
37

1. Dual Sovereignty

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

sovereigns (state and federal), can be tried by both. For 

example, someone who robs a federally insured bank in 

Brunswick, Georgia, can be prosecuted by the state and, 

regardless of the state court verdict, can be prosecuted again 

for the same acts in federal court.

2. Mistrial

A mistrial is a serious procedural error that stops the trial. If 

at any time prior to the verdict, a judge declares a mistrial, the 

trial becomes void and does not prevent the accused from being 

tried again. A mistrial might be declared in any case in which 

the judge feels the ends of justice cannot be served.

3. Nolle prosequi (nolle pros)

Nolle prosequi is a formal entry upon the record by the 

prosecutor by which he or she declares that the government 

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

counts, or some of the defendants, or both. A nolle pros does 

not bar prosecution at a later time, as long as the nolle pros is 

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

the swearing of the first witness in a bench trial.

4. Remand of the Case

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

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

b. Self-Incrimination

The Self-Incrimination Clause of the Fifth Amendment is 

covered in depth in another chapter of this book, but some 

general observations are appropriate. While the Fourth 
38

Amendment concerns government searches for physical 

evidence, the Fifth Amendment’s Self-Incrimination Clause 

focuses on government interrogations seeking communicative 

evidence. Government interrogation means words or actions 

likely to elicit an incriminating response (e.g., “Did you do it?”). 

Communicative, or testimonial, evidence from the suspect can 

be verbal (e.g., “Yes, I did.”), written, or non-verbal (nodding). 

In any case, it requires the accused to communicate a thought 

process about the crime. Obtaining booking information 

(name/address/phone number/etc.), fingerprints and physical 

evidence (blood, urine, hair, and semen) do not require the 

communication of a thought process and therefore, do not 

present a Fifth Amendment self-incrimination issue.

c. Grand Jury Indictment

All “infamous” crimes must be prosecuted by grand jury 

indictment. “Infamous” means felony offenses. A grand jury is 

a body of impartial citizens selected to review a criminal 

incident and conduct their own investigations to determine

whether probable cause exists to charge a person with a crime.

A suspect has a constitutional right to a grand jury indictment 

if he is charged with a federal felony offense. This right to a 

grand jury indictment can be waived unless it is a capital 

offense.

d. Due Process of Law

No person may be denied life, liberty or property without due 

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

incorporated into our judicial system. Due Process directly 

impacts several important law enforcement practices such as 

show-ups, line-ups, and photo arrays. Due Process means that 

the standards and procedures are the same - for everyone. 

Furthermore, the more adverse the proposed government 

action against the individual, the more due process is provided. 
39

Due process ensures government action is fundamentally fair 

for everyone.

2.4.4 Sixth Amendment

Many of the federal criminal procedural rules have their 

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

important rights:

a. Speedy Trial

The Sixth Amendment affords an accused the right to speedy 

trial. As a result of the Speedy Trial Act of 1974, 18 U.S.C. § 

3161, all persons charged with a federal crime must be brought 

to trial within specified timeframes. The speedy trial clock 

commences to run when the suspect is taken into custody.

b. Confrontation of Witnesses

The Sixth Amendment affords the accused the right to 

confront the witnesses against him. This right provides the 

accused with the most effective way of challenging the 

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

jury to decide what weight it will give the testimony.

SIXTH AMENDMENT 

In all criminal prosecutions, the accused shall enjoy the 

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

of the State and district wherein the crime shall have 

been committed, which district shall have been 

previously ascertained by law, and to be informed of the 

nature and cause of the accusation; to be confronted 

with the witnesses against him; to have compulsory 

process for obtaining witnesses in his favor, and to have 

the Assistance of Counsel for his defence. 
40

c. Compulsory Process

The Sixth Amendment provides the defendant with the power 

to subpoena witnesses to testify on his behalf, thus balancing 

the prosecution’s power to subpoena witnesses against the 

accused.

d. Assistance of Counsel

The defendant has a Sixth Amendment right to assistance of 

counsel regarding the offenses for which he is charged. The 

right to counsel regarding these offenses attaches upon 

indictment by a grand jury, a filing of an information (charging 

document) by the government, or upon the suspect’s initial 

appearance in court. If any of these events occur and the 

government wants to interrogate the suspect, place him in a 

lineup, or take him to court regarding the charged offense, the 

suspect is entitled to be informed of his right to counsel.

e. Informed of the Nature and Cause of Charges

Once taken into federal custody, a suspect will be taken to 

court without unnecessary delay for his initial appearance. 

The initial appearance is a court hearing where the suspect is 

formally notified of his rights and the charges that have been 

filed against him.

f. Venue

Jurisdiction is the power and authority of a court to deal with 

a person or particular subject matter. Original jurisdiction for 

the prosecution of federal crimes rests with the Federal 

District Court. Venue deals with the actual location of the 

trial. Absent extraordinary circumstances, venue is proper 

(the trial will take place) in the state and district where the 

crime was committed.
41

2.4.5 Eighth Amendment

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

pretrial release from custody of a person who is presumed 

innocent until proven otherwise. At the same time, bail 

provides the government with a reasonable assurance that the 

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

proceedings. What is considered to be “excessive” is difficult to 

determine, but generally the bail should be the absolute 

minimum that will reasonably assure the appearance of the 

accused (See 18 U.S.C. § 3141 et seq.). The courts have applied 

the Eighth Amendment’s protection against excessive fines to 

civil asset forfeitures when they are at least partially punitive 

in nature. An example might be where a $42,000 vehicle is 

seized in a case where the maximum fine was $10,000.

2.4.6 Fourteenth Amendment

The Bill of Rights originally only limited the power of the 

federal government. Following the Civil War, Congress 

enacted the Fourteenth Amendment. This amendment was 

used as a funnel by the Supreme Court to selectively 

incorporate the fundamental rights found in the Bill of Rights 

and make them applicable to the states. Today, if a federal law 

enforcement officer conducts an unreasonable search and 

seizure, that officer violates the Fourth Amendment. If a state 

law enforcement officer does so, he violates the Fourth 

Amendment, as made applicable to the states through the 

Fourteenth Amendment.

EIGHTH AMENDMENT 

Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted. 
42

2.5 Criminal Justice Components from the Constitution 

Various components of the criminal justice system may be 

traced directly to the Constitution and its amendments. For 

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

Section 2.

The amendments incorporate many additional components of 

the criminal justice system. The Fourth Amendment protects 

people from unreasonable searches and seizure of their 

persons and properties. The Fifth Amendment includes the 

rights to be free from compelled self-incriminating testimony, 

to generally have felony cases presented to juries for 

indictments, to be free of double jeopardy and to enjoy the 

fundamental fairness of due process. The Sixth Amendment 

guarantees the defendant rights at trial. For instance, the 

accused is assured of a “speedy and public trial,” 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.

 

2.6 Controlling Speech Under the First Amendment 

 

2.6.1 Generally

The people have a First Amendment right to express their 

thoughts and ideas in public forums. Expression can be 

offensive, even “anti- American.” Nonetheless, expression is 

protected unless it falls within one of the unprotected 

categories discussed later in this chapter. Rights of expression 

are greatest in public forums, as these are the places where 

the people have traditionally exercised their First Amendment 

rights.
43

2.6.2 Government Action

The First Amendment provides that “Congress shall make no 

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

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

Government for redress of grievances.” Literally, the First 

Amendment restricts Congress. In practice, the First 

Amendment protects the people from any branch of 

government, state or federal.

Today, if a federal law enforcement officer unduly restricts 

expression, that officer violates the First Amendment. If a 

state law enforcement officer does so, he or she violates the 

First Amendment as made applicable to the states through the 

Fourteenth Amendment. Private action, however, never 

triggers First Amendment protections or any other 

constitutional protection, for that matter.

2.6.3 Expression

The First Amendment rights of “freedom of speech, or of the 

press, or the right of the people peaceably to assemble” are 

often grouped together and called freedom of expression. The 

First Amendment protects the people from unreasonable 

government restrictions upon their expression of thoughts and 

ideas.

The expression of thoughts and ideas has been addressed in 

multiple mediums to include the written word, the spoken 

word, symbols, and conduct. Symbols and conduct also receive 

First Amendment protection when there is intent to convey a 

particular message and the likelihood is great that the 

message will be understood by those who view it.

The First Amendment protects ideas. It is not the 

government’s place to control ideas because they are wrong, 

offensive, or anti-American. In essence, the Constitution gives 
44

the people the right to express their ideas. Those ideas are 

protected unless shown likely to produce a clear and present 

danger of serious substantive evil that rises far above just 

offending someone. Some examples of protected expression 

follow:

• Expressing disapproval (through the spoken word) of 

Canada’s decision not to support Operation Iraqi 

Freedom by shouting, “F--- Canada” as the Canadian 

flag passed in a parade.

• Expressing disapproval (through the written word) of 

the Vietnam War by sewing the words “F--- the Draft” 

on the back of a jacket.

• Expressing disapproval of American policy (through 

speech and conduct) by dousing an American flag with 

kerosene setting it on fire, and chanting, “America, the 

red, white, and blue, we spit on you.”

• Wearing and displaying symbols of racial superiority, 

like the Nazi uniform and Swastika.

2.6.4 Government Restrictions

Historically, the government attempted to restrict expression 

of both content and content-neutral messages.

a. Content-Based Restrictions

The government may not approve of a speaker’s message or 

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

restrict it. These are “content-based” restrictions. They are 

intended to control the communicative impact of the message 

on the recipient. Content- based restrictions are subject to 

strict scrutiny by the courts and almost invariably are struck 
45

down, as a violation of the First Amendment right of 

expression.

“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 neoNazi group announced its intention to demonstrate there in 

1977, the city enacted ordinances prohibiting “public display 

of markings and clothing of symbolic significance.”

In effect, the ordinances prohibited the Nazis from wearing 

their brown-shirt uniforms and flying the Swastika. These 

government restrictions were intended to protect Jewish 

citizens from the communicative impact (shock affect) of the 

Nazis’ message. As such, they restricted ideas and were struck 

down by the courts.

Finding government action content-based is normally its death 

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

the government to prove that restricting the idea not only 

serves a compelling government interest, but is also narrowly 

drawn to achieve that end. Of course, averting violent clashes 

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

compelling government interest. That, however, is not enough. 

The government must also show that the government interest 

is not achievable through some alternative other than 

restricting the message. For example, if the government can 

implement safety measures to control the crowd to avert 

violence, any government restriction based on the speech 

content is not narrowly drawn, and the court is likely to strike 

the restriction down.
46

The following are examples of unconstitutional, content-based 

government restrictions intended to control the 

communicative impact on the recipient.

• 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 the act.

• Reducing a Ku Klux Klan march in Washington, D.C. 

from 14 blocks to four based on the crowd’s potentially 

violent reaction to the Klan’s message.

b. Content-Neutral Restrictions in Public Forums

The second reason the government may attempt to restrict 

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

Content-neutral restrictions seek to avoid some evil that is 

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

aimed at controlling ideas, content-neutral restrictions receive 

less scrutiny and are much more likely to pass constitutional 

muster.

Content-neutral restrictions allow the government to control 

expression in public forums. There are three potential forums 

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

and public forums. A speaker does not have a First 

Amendment right to express his views on another’s private 

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

leave, the owner can sue or seek to prosecute for trespassing.

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

open for public expression. Military bases are non-public 

forums. The Federal Law Enforcement Training Centers 

(FLETC) is another. The government can prohibit 

demonstrations on FLETC for security reasons and to reduce 

student distractions.
47

Public forums are where the people have traditionally 

exercised First Amendment freedoms. They traditionally

include public streets, sidewalks, and parks. Nonetheless, 

people do not have unfettered access to public forums. 

Demonstrators cannot march down a public street anytime 

they wish. The government can require demonstrators to 

obtain a permit that restricts the time, place, and manner of 

expression. Time, place, and manner restrictions may have the 

incidental by-product of interfering with the speaker’s 

message. However, they will be upheld if they serve a 

significant government purpose, are enforced in a contentneutral manner, and do not allow government agents to use 

their own discretion about when to issue a permit. These 

restrictions are not limiting what someone might say, but 

possibly when and where they might say it. Federal law 

enforcement officers must strictly adhere to the guidelines in 

the permitting process. Some examples follow:

• The U.S. Park Service may require an organization to 

obtain a permit that restricts the time of its 

demonstration in order to prevent one demonstration 

from interfering with another.

• The Park Service’s permitting process may restrict 

where the demonstration takes place in order to prevent 

demonstrations from blocking traffic.

• The permit may require sound amplification devices 

(bull horns) to remain under a certain amplification level 

in order to prevent the demonstration from unduly 

disturbing other people using the park.

2.6.5 Unprotected Conduct

Conduct receives less First Amendment protection than other 

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

Court rejects the view that all conduct can be labeled First 
48

Amendment expression simply because the person engaging in 

it intends to express an idea. The Constitution protects the 

exposition of thoughts and ideas. However, violence and 

destruction of another’s property is not protected expression. 

Moreover, in criminalizing such behavior, the government’s 

intent is to stop destructive behavior, not ideas. Examples of 

unprotected conduct follow:

• A defendant may be charged with 18 U.S.C. § 111, 

assaulting a U.S. Marine on account of his service in 

Iraq. The statute is content-neutral because it is 

intended to protect federal employees, not thoughts and 

ideas about the war.

• A defendant may be charged with burning an American 

flag in a National Park in violation of an ordinance 

prohibiting outdoor fires, so long as the ordinance is 

intended to stop forest fires, not demonstrators from 

dishonoring the flag.

• A state criminal statute may prohibit cross burning in a 

public place if the cross was burned with the intent to 

intimidate any person or group of persons. The statute 

distinguishes protective, albeit offensive expression 

(symbols identifying the Ku Klux Klan), from criminal 

conduct (intentional intimidation).

2.6.6 Unprotected Speech

While other forms of expression (speech, words, symbols, and 

pictures) receive higher protection than conduct, they, too, 

may fall outside the constitutional umbrella. The Supreme 

Court has identified categories of unprotected speech that the 

government can prohibit. Those categories are defined based 

on the subject matter of the speech and are exceptions to the 

rule that the government may not regulate the message of the 

speaker.
49

a. Fighting Words

Fighting words are personally abusive epithets which, when 

addressed to the ordinary citizen, are reasonably likely to 

provoke a violent reaction. More than profanity, they are an 

invitation to fight. Profane words, alone, unaccompanied by 

any evidence of violent arousal, are not fighting words and are, 

therefore, protected.

Fighting words are often proscribed under disorderly conduct 

statutes. For instance, 36 C.F.R. 2.34 prohibits speech that is 

intentionally physically threatening or menacing. For 

example:

• Law enforcement officers had probable cause to arrest 

the defendant for fighting words after the defendant 

faced the victims from a short distance and repeatedly 

yelled “f--- you,” called one victim a “fat son-of-a b----,” 

and made clucking sounds like a chicken, as if one of the 

victims was afraid to fight. In addition to these facts, the 

court also considered that the night before the defendant 

had brandished a knife toward the victims, which 

increased the chance for violence. Even though the 

victims exercised restraint, the court found that a 

reasonable onlooker could have believed the defendant’s 

actions were a direct personal insult and an invitation to 

fight.

• However, a Nazi demonstrator is not using fighting 

words when he says to a crowd, “The Holocaust is a big 

lie, made up by the f---ing Jews.” Standing alone, these 

words are not an invitation to fight.

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

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

officials, such as law enforcement officers. Officers are 

expected to exercise a higher degree of restraint than the 
50

average citizen. Americans have a constitutional right to 

criticize their government and government officials. For 

example:

• A woman’s expression of telling a police officer, “You G—

d---- mother f---ing police. I’m going to the 

Superintendent of Police about this,” is protected speech.

• An Arkansas state trooper was denied qualified 

immunity for a constitutional tort after arresting the 

plaintiff for “flipping him off.”

• But, distinguish mere criticism of police action from 

actual interference with law enforcement activities. A 

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

an arrest, when the defendant, who was an onlooker, 

yelled statements of police brutality, “f--- this, f--- that, 

and this is f---ked.” After the ranger told the defendant 

to back up, the defendant clenched his fists, stuck out 

his chest, stepped forward, and yelled “f--- you.” The 

court was not concerned with the defendant’s verbal 

criticism, but sustained a conviction for violating 36 

C.F.R. 2.32(a)(2) – violating the lawful order of a 

government agent during law enforcement actions.

b. True Threats

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

statutes that proscribe true threats are:

• Title 18 U.S.C. § 115(A) states in part that “Whoever -

...threatens to assault ... a Federal law enforcement 

officer (or a member of her immediate family) with 

intent to ... interfere with such official ... while engaged 

in the performance of official duties, or with intent to 

retaliate against such official....” The statute also 

prohibits a similar threat “on account of” the officer’s 
51

past service.

• Title 18 U.S.C. § 844(e), regarding fire or explosives, 

states in part that “Whoever, through the use of the 

mail, telephone, telegraph, or other instrument of 

interstate ... commerce, willfully makes any threat ... 

concerning an attempt to kill, injure, or intimidate any 

individual or to unlawfully damage or destroy any 

building....”

• Title 18 U.S.C. § 876(c), states in part that “Whoever 

knowingly ... deposits or causes to be delivered (through 

the use of the mail), any threat to injure the person of 

the addressee or of another....”

• Title 18 U.S.C. § 871 makes it a crime to make threats 

against the President or Vice President.

True threats have common characteristics. They express a 

present determination or intent to hurt someone, now or in the 

future. “I will kill you” shows a present determination. 

Conditional threats, however, are not punishable when the 

condition negates the threat (e.g., “I would kill you if I were 

younger.”). On the other hand, conditions that are likely to 

become true may amount to true threats. For example, “I will 

kill you when I get out of jail.” Finally, the speaker’s words 

may amount to a true threat if he announces a condition he 

cannot lawfully make, e.g., “If you say anything, I’ll make sure 

you spend time in the hospital.”

The test of a true threat is whether a reasonable person 

hearing the words would believe the defendant was serious 

about carrying out the threat. Whether the defendant was 

serious, in fact, is not an element. However, an utterance in 

jest or conditioned on a variable that cannot occur (being 

younger) is not a threat. Moreover, the defendant need not 

communicate the threat to the intended victim. 
52

Communicating the threat to a third party is sufficient. 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 a-- if I were sober” is not a 

true threat.

• The speaker sees a U.S. Park ranger at the mall and 

says, “You’re the stupid b---- that arrested me two years 

ago. I’m going to kick your a--.”

• The defendant sees a U.S. Park ranger’s husband at the 

mall and says, “Your wife arrested me two years ago. I’m 

going to kick your a--.”

• The speaker sees a U.S. Park ranger’s husband at the 

mall and says, “Your wife arrested me two years ago. 

Neither of you will live to see Christmas.”

c. Advocating Imminent Lawless Action

Historically, some people have not only criticized their 

country, but advocated for laws to be ignored and the 

government overthrown. Restrictions on speech that advocate 

lawlessness are tightly limited when the advocacy occurs in 

public. Advocating lawlessness in public is punishable when 

two conditions are satisfied. First, the advocacy must be 

directed to inciting or producing imminent lawless action. 

Consequently, advocating lawlessness at some future time is 

protected. Secondly, the advocacy must be likely to incite or 

produce lawlessness. So even if the speaker advocates 

immediate lawlessness, the crowd must still be receptive to the 
53

idea. Brandenburg v. Ohio, 395 U.S. 444 (1969). Some 

examples follow: 

• Advocating imminent lawlessness: During a public 

demonstration, a speaker yells at a crowd, “If you’re a 

Muslim, then you’re responsible for 9/11.” At this, the 

non-Muslim crowd cheers in approval. The speaker 

continues, “See that store over there” pointing to a 

grocery store. “That’s owned by Muslims. Let’s give them 

a taste of their own medicine and bust out their 

windows.” At this the crowd cheers louder and even 

begins to pick up rocks as if they might throw them at 

the store windows. 

• Advocacy based on a contingency that does not incite 

imminent lawlessness: During a demonstration, a 

speaker yells, “The war in Afghanistan violates 

international law. Unless U.S. troops are pulled out of 

Afghanistan, we are going to come back and give 

President Obama a taste of what war is like and torch 

government buildings.” The crowd cheers in agreement. 

• Advocacy that is not likely to incite lawlessness: During 

a demonstration about the war in Afghanistan, a 

demonstrator yells, “There’s no way you’re going to make 

me go. If they try to send me, the first guy I’ll shoot will 

be Barack Obama.” The crowd laughs. 

Advocating lawlessness is sometimes called political speech. 

Although advocating lawlessness in public speech is generally 

protected; privately directing or soliciting the commission of a 

crime is not. 

d. Creating a Clear and Present Danger 

Comments that place the public in fear of an impending peril 

are punishable. For example, telephoning security personnel 
54

at a federal building and saying, “There’s a bomb in the 

building” is unprotected speech. Likewise, joking with a flight 

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

unprotected speech. The bomb threat is punishable under 18 

U.S.C. § 844, above. The joke (false information) about the 

bomb on the airplane is punishable under 18 

U.S.C. § 32. 

e. Obscenity

The Supreme Court defined obscenity as “whether to the 

average person, applying contemporary community standards, 

the dominant theme of the material taken as a whole appeals 

to prurient interests.” “Prurient” describes material that has a 

tendency to incite lustful thoughts, or unwholesome sexual 

desires. Obscenity is grossly offensive to modesty, decency, or 

propriety. It shocks the moral sense, because of its vulgar, 

filthy, or disgusting nature. It must violate community 

standards. Child pornography violates community standards 

of decency, so long as it depicts actual children under the age 

of 18 engaged in sexually explicit acts. Ashcroft v. Free Speech 

Coalition, 535 U.S. 234 (2002). Several federal statutes 

proscribe obscenity. 18 U.S.C. § 2252A proscribes possession of 

child pornography that has been transported in interstate 

commerce. 18 U.S.C. § 1460 prohibits possession with intent 

to sell or the sale of any obscene material on federal property. 
55

Chapter 3 - 

 

Courtroom Evidence 

3.1 Introduction to Courtroom Evidence ......................... 57

3.1.1 Forms of Evidence........................................................57

3.1.2 Admissibility ................................................................58

3.1.3 Applicability of the Federal Rules of Evidence ..........58

3.2 The Procedural Stages of a Criminal Trial ................ 59

3.2.1 Pre-Trial Suppression (Motion) Hearings ..................59

3.2.2 Voir Dire .......................................................................60

3.2.3 Opening Statements by Counsel.................................60

3.2.4 The Case-in-Chief ........................................................60

3.2.5 The Defense Case.........................................................60

3.2.6 The Rebuttal Case .......................................................61

3.2.7 Closing Argument........................................................61

3.2.8 The Charge to the Jury................................................61

3.2.9 Sentencing....................................................................61

3.3 Relevant Evidence ..................................................... 62

3.3.1 The Requirement for Evidence to be Relevant...........62

3.3.2 Other Crimes, Wrongs, and Acts of the Defendant ...62

3.4 Direct and Circumstantial Evidence ......................... 64

3.5 Lay (And Expert) Witness Testimony ....................... 65

3.5.1 Handwriting .................................................................66

3.5.2 Voice..............................................................................66

3.5.3 Emotional Condition....................................................67

3.5.4 Not Requiring Scientific or Technical Knowledge .....67

3.6 Witness Credibility and Impeachment ...................... 67

3.6.1 Impeachment................................................................67

3.6.2 Factors that Affect Witness Credibility......................68

3.7 Privileges ................................................................... 71

3.7.1 Holders of a Privilege ..................................................71
56

3.7.2 Waiver of Privileges.....................................................71

3.7.3 Privileges and the Federal Rules of Evidence............72

3.7.4 The Federal Privileges.................................................72

3.7.5 Non-Federally Recognized Privileges .........................73

3.7.6 The Attorney-Client Privilege.....................................73

3.7.7 The Spousal Privileges ................................................74

3.7.8 The Psychotherapist-Patient Privilege.......................75

3.7.9 The Clergy-Communicant Privilege ...........................76

3.7.10 The Government-Informant Privilege.....................77

3.8 Evidentiary Foundations ........................................... 78

3.8.1 Laying a Foundation....................................................79

3.8.2 Marking/Tagging Evidence .........................................79

3.8.3 Chain of Custody..........................................................79

3.8.4 Legal Admissibility / Preserving Trace Evidence ......80

3.8.5 Condition of the Evidence at the Time of Trial..........80

3.9 Foundations: Business Records/Public Documents ... 82

3.9.1 The Best Evidence Rule (F.R.E.s 1001 and 1002)...82

3.9.2 Self-Authentication......................................................83

3.9.3 Hearsay Exceptions .....................................................84

3.10 Hearsay ...................................................................... 85

3.10.1 Hearsay Defined .......................................................85

3.10.2 Hearsay Examples....................................................85

3.10.3 Applicability of the Hearsay Rule............................85

3.10.4 Reason for the Hearsay Rule ...................................86

3.10.5 What is a Statement? ...............................................86

3.10.6 “Truth of the Matter Asserted”................................86

3.10.7 Non-Hearsay .............................................................87

3.10.8 Confrontation of Witnesses ......................................87

3.11 Exceptions to the Hearsay Rule ................................ 87

3.11.1 “Excited Utterances” ................................................88

3.11.2 Statements Regarding Medical Diagnosis / 

Treatment.................................................................................88

3.12 Statements, Reports, and Courtroom Testimony ...... 89
57

3.13 Authenticating Digital Evidence From Computers ... 90

3.13.1 Involving Computer Forensics Experts...................90

3.13.2 Evidentiary Issues and Authentication ..................90

3.13.3 Admissibility of Digital Evidence ............................91

3.13.4 Best Evidence Rule - “Original”...............................92

3.13.5 Hearsay Issues..........................................................92

3.1 Introduction to Courtroom Evidence 

Evidence is the backbone of every criminal prosecution. Unless 

law enforcement officers and prosecutors properly collect, 

preserve, and present evidence, it will not be admissible in 

court, and the jury cannot consider it no matter how important 

or persuasive it may be. Law enforcement officers must have a 

general understanding and appreciation of some 

fundamentals of the Federal Rules of Evidence (F.R.E.) to 

ensure that they are collecting and preserving evidence so that

the court will admit it at trial.

The jury decides how much weight to give to evidence that the 

court admits at trial. Jurors may consider the evidence as 

powerful proof, or they might disregard it altogether. When 

law enforcement officers collect evidence in a way that 

complies with the F.R.E., the judge will generally admit the 

evidence and allow the jury to consider it when determining 

the guilt or innocence of the defendant.

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 a fact at issue.

3.1.1 Forms of Evidence

Evidence comes in several forms:
58

Testimonial: A witness takes the stand, the court places the 

witness under oath, and he or she answers questions. The 

witness’s answers are testimonial evidence. 

Physical: Physical evidence is something that can actually be 

touched or seen. Items that law enforcement officers find, 

collect, seize or otherwise obtain become exhibits that the 

government prosecutor can offer into evidence. Guns, drugs, 

photographs, and documents are common forms of physical 

evidence. The government or the defendant will assign an 

exhibit number to physical evidence when offering it into 

evidence at trial. (Government’s Exhibit #1 or Defendant’s 

Exhibit #1).

Demonstrative: Demonstrative evidence consists of items that 

demonstrate or illustrate something to the jury, such as 

models, charts, and graphic aids. A party uses demonstrative 

evidence to explain other evidence that the court has already 

admitted. 

3.1.2 Admissibility 

The judge decides the admissibility of the evidence. When one 

party offers evidence, the opposing party may object. If the 

judge overrules the objection, he or she admits the evidence 

and the jury may consider it in deciding the verdict. Such 

evidence has been “received in evidence.” If the judge sustains 

the objection, he or she does not admit the evidence and the 

jury may not consider it. The judge applies the F.R.E. in 

deciding whether to admit evidence. 

3.1.3 Applicability of the Federal Rules of Evidence 

During the prosecution of a criminal case, many proceedings 

require the prosecution and defense to appear before a judge. 

These proceedings include the initial appearance, detention 

and identity hearing, preliminary hearing, arraignment, trial, 
59

and sentencing hearing. With the exception of two specific 

F.R.E.s that deal with privileges, which apply to all judicial 

proceedings, the F.R.E. only apply at trial. The trial is the 

judicial proceeding where the parties present evidence and the 

jury determines the guilt or innocence of the defendant. The 

F.R.E. governs the admissibility of evidence at the trial.

The F.R.E. also do not limit the information officers may 

consider when investigating a case. For example, officers may 

consider hearsay information when conducting an 

investigation or deciding whether there is reasonable 

suspicion or probable cause. With the exception of privileges, 

the F.R.E. do not limit the evidence judges may consider in 

deciding whether to issue search warrants or arrest warrants.

3.2 The Procedural Stages of a Criminal Trial 

3.2.1 Pre-Trial Suppression (Motion) Hearings

If one party does not want the jury to hear or see certain 

evidence, that party will file a motion to suppress or exclude 

that evidence. Most often, the defense files suppression 

motions because it claims the government unlawfully obtained 

a confession or an item of physical evidence. The judge will 

usually order a hearing if the defense files a suppression 

motion. Law enforcement officers frequently testify at 

suppression hearings. A jury is not present and the judge will 

decide whether to admit the evidence so that the jury can 

consider it at the later trial.

If the judge grants a defense motion to suppress, the jury will 

not see or hear the evidence. If the judge denies the motion to 

suppress, the government may present the evidence to the 

jury.
60

3.2.2 Voir Dire

During voir dire, the lawyers for the government and the 

defense question the potential jurors. Each party has the 

opportunity to eliminate, or strike, a certain number of 

potential jurors from the panel if it perceives, based on the 

questioning, that that juror might be biased. After the parties 

exercise their strikes, the court will select the jury from the 

remaining members of the panel.

3.2.3 Opening Statements by Counsel

At this stage, lawyers tell the jury what they expect the 

evidence will show. The defense may reserve its opening 

statement until after the conclusion of the government’s case. 

These statements by counsel are not evidence.

3.2.4 The Case-in-Chief

The government presents its evidence during the case-in-chief 

by calling witnesses and offering exhibits. The government 

presents its case-in-chief first because the government has the 

burden of proving the defendant’s guilt. The defense may 

cross-examine any witness who testifies and may challenge 

the admissibility of exhibits. If the defense cross-examines a 

witness, the government may conduct a “re-direct” 

examination. The judge can allow further re-cross and redirect examination.

3.2.5 The Defense Case

The defense is never required to present evidence because the 

burden is, and always remains, on the government to prove the 

defendant’s guilt. However, the defense may choose to call 

witnesses and introduce exhibits. The government can crossexamine defense witnesses and challenge the admissibility of 
61

defense exhibits. The defense can conduct a re-direct 

examination if the government cross- examines a witness.

3.2.6 The Rebuttal Case

If the defense presents a case, the government may offer 

rebuttal evidence. In the rebuttal case, the government may 

only present evidence that rebuts or challenges the evidence 

the defense presented. If the government presents a rebuttal 

case, the defense may then rebut only the evidence that the 

government presented in rebuttal.

3.2.7 Closing Argument

During closing arguments, the lawyers tell the jury what they 

believe the evidence showed. The lawyers may refer only to 

evidence that the court admitted during the trial. Argument 

by counsel is not evidence.

3.2.8 The Charge to the Jury

During “the charge” (instructions) to the jury, the judge will 

tell the jury what the law is so the jury may apply the law to 

the facts in reaching the verdict. After deliberation, the jury 

will announce the verdict.

3.2.9 Sentencing

If the defendant is convicted of any offense, the judge will 

conduct a sentencing hearing. Because the U.S. Probation 

Office must conduct and prepare a Presentence Investigation 

Report, the sentencing hearing is generally set weeks or 

sometimes months after trial. In federal criminal trials, only 

the judge determines the sentence. The jury does not 

participate unless the case is a capital (death penalty) case. In 

capital cases, the jury makes certain findings.
62

3.3 Relevant Evidence 

3.3.1 The Requirement for Evidence to be Relevant

Evidence must be relevant to be admissible. Evidence is 

relevant if it has any tendency to prove or disprove a fact that 

is at issue in the trial.

Evidence which tends to: (a) prove (or disprove) an element of 

the crime charged, (b) prove or rebut a defense, or (c) concerns 

the credibility (believability) of a witness is always relevant. If 

evidence has any tendency to prove a part of the government 

or defense case−directly or indirectly− the evidence is relevant.

3.3.2 Other Crimes, Wrongs, and Acts of the Defendant

The government is required to prove the elements of the 

offenses with which the defendant is charged. Evidence of 

crimes or other acts that are not charged or relevant to prove 

a charged offense are inadmissible.

Specifically, the government cannot offer evidence of the 

defendant’s uncharged misconduct to prove he “did it before, 

so he must have done it again” or that the defendant is a “bad 

person.” This is “propensity evidence” and is not admissible. 

The government, 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’s testimony. Accordingly, investigators should find 

and document this evidence.

Examples:

• Motive. Does a prior act tend to prove the defendant’s 

motive to commit the charged crime? For example, a 

prior altercation between the defendant and the victim 
63

may be admissible to prove motive for a later assault. In 

a bank fraud case, evidence that the defendant had 

outstanding debts may be admissible to prove the motive 

for using a false name on a bank loan.

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

defendant had a specific intent to commit the charged 

offense? In one case, the court held that a prior 

conviction for distributing drugs was admissible to prove 

intent in a charge for conspiracy to distribute drugs.

• Knowledge. Do the defendant’s acts tend to prove the 

defendant knew a certain fact? Evidence that 20 

firearms were seized from the defendant’s house might 

be admissible to prove the defendant knew he had 

firearms in his home, even if he was only charged with 

possessing one firearm in connection with drug 

trafficking.

• Plan or preparation. Do the defendant’s acts tend to 

prove how the defendant planned or prepared for the 

charged crime? In a sexual assault trial, evidence that 

the defendant gave his prescription sleeping medication 

to the victim in a drink prior to the assault would 

probably be admissible to show the defendant’s plan to 

render the victim unable to resist the assault.

• Opportunity to commit the crime. In one case, the court 

permitted the government to show a photo of the 

defendant holding a "large gun," taken before the 

charged crimes, to show defendant had access to guns.

• Modus Operandi. If the defendant has a particular way 

of committing an offense, evidence of prior offenses he 

committed in the same way may be admitted to prove he 

committed the offense for which he is on trial.
64

• Identity of the perpetrator. Evidence that on a prior 

occasion the defendant, under “signature-like” 

circumstances, committed an offense may be admissible 

to prove that the defendant was the person who 

committed the charged offense.

• Impeachment by contradiction. If the defendant makes 

a factual claim while testifying, the government can 

introduce the defendant’s prior bad acts or convictions if 

they contradict that factual claim. For example, a 

defendant charged with tax fraud might testify that she 

has never knowingly claimed a fraudulent deduction on 

her tax return. The government could seek to introduce 

evidence of her prior conviction for filing a tax return 

claiming a deduction for a charitable contribution to a 

fictitious charity. As another example, if the defendant 

claims she was never at a particular location, the 

government 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 similar criminal 

acts are admissible to prove that the defendant was 

predisposed to commit the charged crime.

3.4 Direct and Circumstantial Evidence 

Direct evidence tends to prove a fact directly and without the 

need to draw an inference or a conclusion about what the 

evidence implies or suggests. Direct evidence most often comes 

from what a witness sees, hears, smells, tastes, or touches. In 

contrast, circumstantial evidence (also known as “indirect 

evidence”) tends to prove a fact indirectly through an 

inference, deduction, or a conclusion. For example, testimony 

that “The street was wet when I got up in the morning” would 

be circumstantial evidence that it had rained during the night, 
65

even if the witness did not testify that he saw or heard the rain 

falling.

Evidence can be direct or circumstantial. There is no legal 

difference as to the weight the jury can assign either type. In 

spite of some common beliefs, circumstantial evidence can be 

very powerful, and juries may sometimes find it more reliable 

and convincing than eyewitness testimony. Most physical 

evidence is circumstantial because it proves something 

indirectly. For example, a ballistics test that proves a certain 

gun fired a certain bullet is circumstantial evidence that the 

defendant (whom law enforcement officers found in possession 

of the gun) killed the victim.

3.5 Lay (And Expert) Witness Testimony 

Generally, a witness may only testify from personal 

knowledge. Witnesses may offer their opinion only if they are 

an expert or if the matter is the proper subject of a “lay witness 

opinion.”

Criminal trials often involve expert witness testimony due to 

advances in forensic evidence such as fingerprint 

identification, DNA, ballistics, toxicology, blood splatter (or 

spatter), fiber comparison, tool and die marks, questioned 

documents and similar disciplines. To testify about a scientific 

or technical matter or other area of specialized knowledge, the 

witness must have qualifications stemming from his or her 

knowledge, skill, expertise, training, or education. (FRE 702). 

Recent Supreme Court cases have emphasized that the 

Confrontation Clause of the U.S. Constitution requires incourt testimony of the experts who perform forensic analysis 

to determine, for example, the identity of controlled 

substances. See the Confrontation Clause discussion below in 

the Hearsay section.
66

Most law enforcement officers (LEOs) are not qualified to 

testify as an expert in forensic areas if they have only 

generalized law enforcement training. For example, while 

most LEOs have had training in collecting latent prints and 

fingerprint identification basics, they have insufficient 

qualifications to testify in court about a fingerprint 

comparison. LEOs who have specialized training, education, 

knowledge or experience can be qualified as experts.

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

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

rationally based on the witness’s perception and personal 

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

of the witness’s testimony or the determination of a fact at 

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

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

witness may offer an opinion about matters that are within the 

perception of an ordinary person that results, as one court 

said, “from a process of reasoning familiar in everyday life.” 

Some examples of a proper lay witness opinion are:

3.5.1 Handwriting

Identification of handwriting if the witness has sufficient 

familiarity with that handwriting. A secretary or co-worker, 

for example, might be sufficiently familiar with someone’s 

handwriting to offer an opinion that particular handwriting is 

or is not that person’s handwriting.

3.5.2 Voice

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

or from a recording) provided the witness heard the voice 

before under circumstances where he knew who the speaker 

was.
67

3.5.3 Emotional Condition

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

3.5.4 Not Requiring Scientific or Technical Knowledge

A witness may testify, “It looked like blood,” because most 

people know what blood looks like.

3.6 Witness Credibility and Impeachment 

A witness is “credible” if he or she is believable. 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.

3.6.1 Impeachment

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

opposing party can impeach any witness who testifies during 

cross- examination of that witness, through the testimony of 

another witness, or by introducing other evidence that 

contradicts the witness’s testimony. Suppose that a defense 

witness testifies that he witnessed a robbery through the 

windows of the bank while standing in the parking lot, and 

that the robber he observed did not look like the defendant.

Examples:

• Impeachment through cross-examination: “Isn’t it true 

that you must wear prescription glasses to see at that 

distance, and you were not wearing your glasses at the 

time?”

• Impeachment testimony of another witness: “Were you 

with Mr. Smith in the parking lot of the bank? Does he 

wear prescription glasses? Was he wearing them in the 
68

parking lot?”

• Impeachment by introducing other evidence: Bank 

surveillance video showing that the robber did not look 

like the person Mr. Smith described.

If an opposing party impeaches a witness, the jury may find 

that his or her testimony is less believable. The party that 

called the witness will then have an opportunity to 

“rehabilitate” (to restore) the witness’ credibility. For example, 

if an opposing party impeached a witness with questions about 

whether the witness was wearing glasses, the party calling the 

witness could rehabilitate him with evidence that the 

prescription was current and the witness was wearing clean 

glasses in a correct manner.

Both impeachment and rehabilitation require facts to be 

effective. The prosecutor depends on LEOs to find these facts. 

In particular, LEOs must collect facts and evidence when they 

can be used: (1) by the prosecuting Assistant United States 

Attorney (AUSA) to impeach defense witnesses; (2) by the 

defense to impeach government witnesses (so the AUSA can 

prepare for it); and (3) by the AUSA to rehabilitate government 

witnesses who are impeached at trial.

3.6.2 Factors that Affect Witness Credibility

a. Bias 

A biased witness may tend to color or slant testimony. Bias can 

arise when witnesses are related by blood or marriage to 

defendants or victims, or when they are members of similar 

groups (gangs, places of worship, college fraternities). Bias 

may also exist in other relationships such as fellow LEOs, 

former prison cellmates, or partners-in-crime.
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b. Motive to Fabricate Testimony

A witness with a stake in the outcome of the trial or a vendetta 

against another witness or the opposing party may have a 

motive to lie (motive and bias are similar). For example, 

witnesses who are financially or emotionally dependent on the 

defendant, or witnesses who have a reason to help (or hurt) the 

defendant, have a motive to fabricate their testimony. Defense 

counsel can easily attack cooperating co-defendants and coconspirators if they try to shift the blame toward the 

defendant.

c. Inability to Observe or Accurately Remember

An opposing party can impeach a witness by showing that he 

or she could not clearly see or hear what happened or cannot 

confidently remember or recall what happened. Examples 

include witnesses who have problems with vision or hearing, 

who were not in a position to see or hear what occurred, who 

were under the influence of alcohol or drugs at the time of the 

event, or who have a mental impairment.

d. Contradiction

A common form of impeachment is to challenge the testimony 

of a witness with other testimony or evidence that contradicts 

the witness’s testimony. An opposing party can impeach a 

witness who says the car was green with a photo or other 

evidence showing that the car was, in fact, red.

e. Prior Inconsistent Statements

Perhaps the best possible impeachment is to contradict 

witnesses with their own words from prior testimony, reports, 

notes, or statements to others.
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f. Specific Instances of Conduct that Indicate a 

Witness is Untruthful

An opposing party may cross-examine a witness about his past 

conduct if it would indicate he is untruthful. The conduct does 

not have to relate to the case that is the subject of the trial. 

Examples would include lying in an investigation, forging 

checks, or engaging in acts of deceit. LEOs who have engaged 

in such conduct, on or off duty, might have that conduct 

exposed in court, as the prosecution may be required to notify 

the defense counsel about incidents involving a law 

enforcement officer’s dishonesty. See the Federal Court 

Procedures chapter in this book.

g. Prior Convictions to Show Untruthfulness (F.R.E. 

609)

An opposing party can use certain prior convictions to impeach 

any witness (including the defendant) who testifies. An 

opposing party cannot use a prior arrest that did not result in 

a conviction to impeach a witness. The concept behind 

permitting a party to use prior convictions for impeachment is 

that a jury may find a person with prior convictions to be less 

credible. A party may use any felony conviction to impeach. A 

party may use a misdemeanor conviction for crimes involving 

dishonesty to impeach a witness. The conviction must be less 

than 10 years old. Convictions more than 10 years old are 

admissible only if the judge determines, “its probative value, 

supported by specific facts and circumstances, substantially 

outweighs its prejudicial effect.” The 10 years is measured 

from the date of conviction or the date of release from 

imprisonment, whichever is later. A party may impeach with 

a conviction that is under appeal, but not with a conviction 

that a higher court has reversed on appeal or for which the 

witness has been pardoned. Generally, a party may not 

impeach a witness with a juvenile adjudication, though LEOs 

should inform the AUSA about any juvenile adjudications.
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3.7 Privileges 

Privileges are protections given to information shared between 

people in specific relationships. When a privilege exists, it 

means that the government cannot require a person to provide 

certain information and the person can prevent others from 

doing so. Ordinarily a party can subpoena a witness to testify 

at a grand jury, a court proceeding, or a trial. If the witness 

refuses to testify, the court can hold the witness in contempt. 

However, if the information is privileged, the court cannot 

compel a person to provide the information, no matter how 

relevant and important it may be. The courts developed the 

privileges used in federal criminal trials

Privileges protect certain information − though relevant and 

important − from disclosure in order to promote some other 

societal good. For example, in order to ensure that criminal 

defendants will candidly communicate with their defense 

attorneys, the law makes their communications privileged. 

Society has decided that it is better to have clients talk fully 

and candidly to their lawyers than to reveal attorney-client 

discussions.

3.7.1 Holders of a Privilege

The holder of a privilege is the person who can refuse to 

divulge the privileged information. In some cases, other 

persons can exercise the privilege on behalf of the holder, such 

as when attorneys refuse to reveal what clients tell them.

3.7.2 Waiver of Privileges

The existence of a privilege means a person cannot be 

compelled to provide information, not that the government 

cannot use the information. For example, if a person holds a 

valid privilege for which there is no exception, and the person 

is subpoenaed to testify at the grand jury or another 
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proceeding, that person can lawfully refuse to divulge the 

information without being held in contempt of court. On the 

other hand, the person can waive the privilege and testify. In 

addition, if the same information is available through a nonprivileged source, the court can admit the information at trial.

Even if a person holds a privilege, law enforcement officers 

may still attempt to question the person, and need not advise 

the person that the privilege exists.

If the person answers the question, he or she waives the 

privilege. Law enforcement officers should assume the person 

might attempt to invoke the privilege at a later proceeding. To 

guard against this possibility, officers should obtain 

independent information that proves or corroborates the 

information that the privilege holder provided.

3.7.3 Privileges and the Federal Rules of Evidence

The general rule is that the F.R.E. apply only during trials, 

and not to other proceedings such as the initial appearance, 

the preliminary hearing, arraignment, grand jury proceedings, 

sentencing hearings, and detention and identity hearings. 

However, F.R.E. 501 and F.R.E. 502, dealing with privileges, 

apply to all proceedings.

3.7.4 The Federal Privileges

Federal privileges that a law enforcement officer will normally 

encounter include:

• The Fifth Amendment privilege against selfincrimination. (See the chapter on Fifth & Sixth 

Amendments for a detailed analysis of this privilege.)

• The attorney-client privilege.
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• The spousal privileges.

• The psychotherapist-patient privilege.

• The government-informant privilege.

• The clergy-communicant privilege.

3.7.5 Non-Federally Recognized Privileges

Some state courts may recognize other privileges that are not 

recognized in federal criminal trials such as the (1) doctorpatient (unless the doctor was a psychotherapist); (2) 

accountant-client; (3) journalist-source (some federal courts 

recognize there may be a qualified, or limited, journalistsource privilege); and (4) parent- child.

3.7.6 The Attorney-Client Privilege

The privilege covers communications, written or oral, between 

an attorney and a client during professional consultation. It 

includes communications before payment for services, and the 

privilege remains even if the attorney-client relationship ends, 

such as when a client fires the lawyer. The privilege exists to 

encourage clients charged or under investigation for a crime to 

speak candidly with their attorney in order to obtain legal 

advice.

For the privilege to exist: (a) the attorney must be acting as an 

attorney in a professional capacity, (b) the client must intend 

the communication to be confidential, and (c) the 

communication must be confidential in fact.

The client holds the privilege. The attorney may exercise the 

privilege for the client by refusing to divulge what the client 

told the attorney.
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The privilege does not apply when the attorney is serving in 

some function other than a legal adviser, such as a mere 

conduit for funds, certain real estate transactions, stock sales, 

or other ordinary business transactions. Such dealings are not 

strictly attorney functions.

While the privilege applies to communications about past 

crimes, it does not apply to circumstances in which 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 that take place in the 

presence of a third person or in a public place in circumstances 

that allow others to overhear are not confidential in nature, 

and therefore are not privileged. The law recognizes, however, 

that if the presence of a third person is essential for the 

attorney to prepare a defense in a criminal case, then these 

third persons fall under the “umbrella” of the privilege. 

Examples would include a legal secretary, paralegal, defenseemployed investigator, or interpreter working for the attorney. 

These principles often apply to the other privileges discussed 

as well.

3.7.7 The Spousal Privileges

There are two spousal privileges. The testimonial privilege 

provides that people have the right to refuse to testify against 

their spouses. This privilege extends to what the spouse saw, 

was told, or knows, including information discovered before 

the marriage. The testifying spouse holds this privilege, and 

can waive it and elect to testify. The privilege ends with 

divorce.

The marital communication privilege, on the other hand, 

protects private communications between the spouses made 
75

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 spouse makes the 

communication under conditions that are not private - such as 

in the presence of their children or friends - it is not a private 

marital communication. This privilege protects only private 

communications between spouses made during the marriage, 

and extends beyond divorce. The spouse who made the 

communication holds the privilege. More and more courts are 

holding that this privilege belongs to both spouses.

The marital privileges exist to encourage spouses to 

communicate with each other and to preserve marriages.

There are several exceptions to the privileges, such as when 

the 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.

3.7.8 The Psychotherapist-Patient Privilege

Confidential communications between licensed psychiatrists, 

psychotherapists or social workers and their patients in the 

course of psychotherapy diagnosis or treatment are privileged. 

Although there is not a general doctor-patient privilege, if the 

doctor is a psychiatrist or other mental health professional, the 

psychotherapist-patient privilege may exist. This privilege 

exists because effective psychotherapy depends upon an 

atmosphere of confidence and trust.

A party asserting the psychotherapist-patient privilege must 

show that the communications were: (a) confidential, (b) 

between a licensed psychotherapist and the patient, and (c) 

during the course of diagnosis or treatment. The patient holds 

the privilege. The person providing the psychotherapy may 

exercise the privilege on behalf of the patient.
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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, some states do not 

recognize the privilege if the patient communicates serious 

threats to himself or others, or the patient and therapist were 

engaged in a criminal enterprise.

3.7.9 The Clergy-Communicant Privilege

The Supreme Court has not specifically adopted the clergycommunicant privilege though most Federal Circuits have 

done so. A party asserting the clergy-communicant privilege 

must show that the he or she made the communications: (a) to 

a member of the clergy, (b) in the clergy’s spiritual and 

professional capacity, and (c) with a reasonable expectation of 

confidentiality. “Clergy” includes a minister, priest, pastor, 

rabbi, or other similar leader of a religious organization, or an 

individual whom the person making the communication 

reasonably believes to be a leader of a religious organization. 

The presence of others necessary to communicate the 

information does not defeat the privilege. The privilege exists 

to encourage people to communicate with members of the 

clergy on spiritual matters.

The communicant holds the privilege. The clergy may exercise 

the privilege for the communicant by refusing to divulge what 

the communicant said. If the communication did not concern a 

spiritual matter (for example, if the communication was about 

a joint criminal enterprise between the clergy and the 

communicant), the privilege will not apply.
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3.7.10 The Government-Informant Privilege

In the other privileges examined so far, the privileged 

information is what the person holding the privilege 

communicated. The government-informant privilege is 

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

but the identity of the informant and information that would 

reveal the informant’s identity is, and (b) the holder of the 

privilege is not the person who made the communication, but 

the government. The privilege exists to encourage people to 

report crime and cooperate with the police.

Not everyone who provides information to the government is 

an informant for the purposes of this privilege. For example, 

victims of crimes and LEOs provide information that does not 

fall within the privilege. All agencies have special rules and 

procedures to follow that bring informants under the umbrella 

of this privilege, and LEOs must be sure that they do not 

promise confidentiality when doing so would be contrary to 

agency policy.

The AUSA will exercise the privilege on behalf of the 

government. LEOs may not reveal the identity of the 

informant unless directed to do so by a judge or the AUSA.

A judge may order the government to reveal the identity of a 

confidential informant. If the judge orders the government to 

reveal the informant’s identity, the AUSA must do so, appeal 

the judge’s order, or dismiss the case. The judge will not order 

the government to reveal the informant’s identity unless it 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 
78

cause, the court will not usually order the government to 

reveal the informant’s identity.

• If the informant merely introduces the defendant to an 

undercover agent, the court will not usually order the 

government to reveal the informant’s identity, since 

what transpires between the undercover agent and the 

defendant is the information that is relevant for the 

defense.

• 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. In this case, it is more likely that 

the court will order the government to reveal the 

informant’s identity.

• If the informant is a co-defendant, conspirator, 

confederate, or a party to a charged offense, it is likely 

that the court will order the government to reveal the 

informant’s identity.

3.8 Evidentiary Foundations 

A party offering evidence at trial must authenticate it, or it 

will not be admissible in court. Authentication requires 

introducing facts to prove that the item is what the party 

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 government evidence, using facts collected by the law 

enforcement officer.

Even if the judge admits evidence, the jury alone determines 

whether to place any value on it, and if so, how much. For 

example, though a judge may admit a gun into evidence, the 
79

jury does not have to believe that the gun was the one that 

someone found at the scene of the crime, or that the defendant 

used the gun in a murder.

3.8.1 Laying a Foundation

The party offering an item into evidence is required to lay a 

foundation for it. A proper foundation consists of evidence, 

usually in the form of testimony, that the item is what the 

party offering it claims it to be. In other words, the lawyer 

cannot simply claim, “This is the gun that was found at the 

scene,” or “The defendant prepared this fraudulent document.” 

A party usually lays a foundation through the testimony of a 

witness who can testify from personal knowledge that the 

exhibit the party is offering in court is the one the witness saw, 

seized, or collected.

3.8.2 Marking/Tagging Evidence

The evidence tag documents the location where the LEO found 

the evidence, the date and time the LEO found the evidence, 

and the name of the LEO who found the evidence. Proper 

marking, tagging and bagging will ensure that the LEO can 

authenticate the evidence when the government offers it in 

court. The LEO who found or seized the evidence should mark, 

tag, and bag the evidence in such a way that the LEO will 

recognize it in court.

3.8.3 Chain of Custody

A properly prepared chain of custody documents where the 

evidence has been and who has handled it from the time law 

enforcement officers discovered it until the time the 

government offers it in court. It also documents any 

alterations to the evidence occurring after law enforcement 

officers discovered it. The first entry on the chain of custody 

should be the person who found the evidence. A new entry is 
80

made each time the evidence changes custody from one person 

to another. A chain of custody does not eliminate the need to 

call a witness to lay a foundation and is not a substitute for 

having the item in court. It can, however, reduce the number 

of witnesses required, assist the government in laying a 

foundation for the evidence, and protect the foundation from 

attack.

3.8.4 Legal Admissibility / Preserving Trace Evidence

Evidence collectors have two challenges: (1) ensuring that a 

witness will be able to authenticate the evidence so that the 

court will admit it at trial; and (2) preserving the item’s 

characteristics and associated trace evidence such as 

fingerprints, hair, and fiber evidence. Laying a foundation for 

the admissibility of evidence does not satisfy evidencehandling techniques designed to preserve trace evidence. 

Handling evidence in a way that preserves trace evidence may 

not always satisfy legal admissibility rules. Law enforcement 

officers must collect and preserve evidence to ensure both the 

government’s ability to lay a foundation and the preservation 

of trace evidence.

3.8.5 Condition of the Evidence at the Time of Trial

The court does not require the government to show that the 

evidence it presents in court is in the same condition it was 

when the law enforcement officer collected it. Usually it is 

sufficient that the evidence is in the same or substantially the 

same condition as when the law enforcement officer collected 

it. If the evidence is not in the same condition as when the 

officer found it, the government must document and explain 

the alterations. For example, if law enforcement officers seize 

20 grams of cocaine and the laboratory consumes .05 grams in 

its 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 government sent the cocaine to the 
81

laboratory, and the laboratory report will document that the 

analysis consumed .05 grams of cocaine. Mishandling of 

evidence or alterations that the government fails to document 

may result in the government’s inability to lay a proper 

foundation. The evidence may then be inadmissible. There is 

no limit to the ways the defense can challenge an evidentiary 

foundation. Here are some examples:

• The foundation witness cannot identify the exhibit at 

trial.

• Unmarked, mismarked or incomplete tags, bags, or 

chain of custody documents.

• Omitted or improperly recorded transfers of evidence on 

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

• Failure to wear gloves or other protective garb and 

obliterating trace evidence or contaminating the scene 

(use proper trace evidence handling techniques; bring in 

a specially trained evidence team when necessary).

• Improper storage of evidence such as un-refrigerated 

biological materials or computer disks and magnetic 

tapes stored near excessive heat or a magnetic source 

(consult evidence handling experts).

• Reuse of evidence tape, swabs, bags, or seals (these 

items are cheap; discard contaminated or used supplies).

• Documents or evidence marked in such a way that the 

evidence is “altered” (Did the LEO obliterate a 

fingerprint when the item was marked? Did page 

numbering of documents alter the meaning or 

authenticity of the document?).

• Work done on originals of computer disks, photos, 

documents, tape recordings or the like (make copies and 
82

work with copies).

• Combining separate pieces of evidence found in different 

places into a single collection of evidence.

3.9 Foundations: Business Records/Public Documents 

3.9.1 The Best Evidence Rule (F.R.E.s 1001 and 1002)

Law enforcement officers and prosecutors can remember this 

as the “Original Document or Writing Rule.” Before copy 

machines, carbon paper, and other duplicating processes, 

copies of documents were hand made. This process lent itself 

to errors in copying, and what was supposed to be an exact 

copy was not always so. Though technology has resolved many 

of the rule’s concerns, parties must follow the rule.

a. An “Original”

The original of a document is the actual document itself or 

counterparts intended to be the equivalent of the original, such 

as identical documents executed by both parties at the same 

time. An original of a photograph is any print made from the 

negative or digital image. As to data stored on a computer or 

similar device, an original is any printout or other output 

readable by sight, shown to reflect the data accurately.

b. “Duplicates”

Duplicates include carbon copies, photocopies, or copies made 

from other techniques that accurately reproduce the original. 

A duplicate is admissible to the same extent as the original 

unless the opposing party raises a genuine question 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. LEOs must always 

endeavor to find and safeguard originals.
83

The Best Evidence Rule states that proving the contents of a 

writing requires admission of the original writing into 

evidence. Witnesses may not testify regarding the contents of 

a document over objection by counsel. If the original document 

or writing is available, the party must offer it into evidence. 

There are exceptions. A witness can testify to the contents of a 

document when all originals have been lost or are 

unobtainable, or when the opposing party has the original and 

will not produce it.

3.9.2 Self-Authentication

A foundation is required to introduce a business record or 

public record. Ordinarily, the custodian of the record who can 

testify about the creation and maintenance of the record lays 

the foundation. Special rules, however, allow certain 

documents and records to be “self-authenticating.” Selfauthenticating records and reports do not require a witness to 

testify and lay a foundation.

a. Public Records and Documents

The F.R.E. permit documents that are public records to be selfauthenticating if a custodian places the seal of the public 

entity on the record to certify they are accurate and complete. 

Federal agencies have established procedures and the 

necessary forms for individuals to obtain certified records. The 

custodian does not have to then testify in order to lay a 

foundation for the document if the document or record is 

certified or under seal. LEOs do not have to obtain these 

records personally from the custodian.

b. Business Records

The F.R.E. permit business records to be self-authenticating 

similar to public documents and reports. To make business 
84

records self- authenticating, and avoid calling the custodian to 

testify, the custodian must certify that:

• The record was made at or near the time to which the 

record pertains by a person with knowledge of the 

matter,

• The record was kept in the ordinary course of business, 

and

• The business made such a record as a regular practice 

(in other words, the business did not generate the record 

just for the trial).

• Certified Records Generated by an Electronic Process or 

System. A record generated by an electronic process or 

system that produces an accurate result, as shown by a 

certification of a qualified person that complies with the 

certification requirements of F.R.E. 902(11) or (12). The 

proponent must also meet the notice requirements of 

F.R.E. 902(11).

• Certified Data Copied from an Electronic Device, 

Storage Medium, or File. Data copied from an electronic 

device, storage medium, or file, if authenticated by a 

process of digital identification, as shown by a 

certification of a qualified person that complies with the 

certification requirements of F.R.E. 902(11) or (12). The 

proponent also must meet the notice requirements of 

F.R.E. 902(11).

3.9.3 Hearsay Exceptions

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 
85

rules, then not only will the business records or the public 

documents or records be self- authenticating, the contents will 

be admissible to prove the truth of the contents as an exception 

to the hearsay rule. This exception to the hearsay rule does not 

apply to matters observed by law enforcement. Even selfauthenticated police reports are still subject to the hearsay 

rule.

3.10 Hearsay 

(Not all programs are responsible for the material in this 

section. Students should check their course syllabus.)

3.10.1 Hearsay Defined

Hearsay occurs when: (a) a person makes a statement out of 

court, (b) a party offers the out-of-court statement in court 

(trial), and (c) the party offers the out-of-court statement for 

the truth of the matter asserted in the statement.

3.10.2 Hearsay Examples

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

in court.

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

stole the purse).

• “John said he saw the robbers drive away in a green car.” 

(To prove the defendants drove a green getaway car).

3.10.3 Applicability of the Hearsay Rule

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

rely on hearsay to develop probable cause, develop reasonable 

suspicion, guide their decisions, and develop leads. Law 
86

enforcement officers may also include hearsay in criminal 

complaints and search warrant affidavits.

3.10.4 Reason for the Hearsay Rule

Hearsay is inadmissible at trial because it is not possible to 

confront and cross-examine the person who made the out-ofcourt statement, and the jury is unable to assess that person’s 

demeanor and credibility. The courts do not consider hearsay 

sufficiently trustworthy to let the jury consider it.

3.10.5 What is a Statement?

A “statement” can be verbal, written (such as a written 

statement of a person) or an act intended to communicate 

information (nodding the head, pointing, gesturing). 

Memoranda, writings, statements, and reports (even under 

oath) are “statements” within the meaning of the hearsay rule.

3.10.6 “Truth of the Matter Asserted”

The third component of the hearsay rule is that a party is 

offering the out-of-court statement for the truth of the matter 

asserted. If the party offering the statement is asking the jury 

to believe it is true, the statement is hearsay. If the party is 

offering the statement for a legitimate reason other than to 

prove that the statement is true, then the statement is not 

hearsay. For example, if the government offers the statement 

“The victim told me that Joe shot him” to prove Joe shot the 

victim, then the statement is hearsay. If the government offers 

the statement to show the reason an officer was looking for 

Joe, the statement is not hearsay because the government is 

not offering the statement to prove Joe shot the victim.
87

3.10.7 Non-Hearsay

a. Statements of the Defendant

Because the government cannot call the defendant to the stand 

to testify, statements made by the defendant and offered by 

the government are specifically excluded from the definition of 

hearsay. The statement could be an admission, confession, or 

just information.

b. Other Statements

The definition of hearsay excludes statements of the 

defendant’s co- conspirators made during and in furtherance 

of the conspiracy. The court will sometimes admit prior 

statements made by trial witnesses that contradict or support 

their trial testimony.

3.10.8 Confrontation of Witnesses

The Sixth Amendment’s Confrontation Clause provides that 

“the accused shall enjoy the right... to be confronted with the 

witnesses against him....” In recent years, the Supreme Court 

has read this strictly and demanded that the prosecution’s lay 

and expert witnesses appear in court. There are exceptions. 

Generally, even if the government could overcome a hearsay 

objection by, for example, showing that an exception to the 

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

witnesses. LEOs taking witness statements must document 

how to track those witnesses down for trial.

3.11 Exceptions to the Hearsay Rule 

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

admissible. There are many hearsay exceptions, and this text 

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

might be hearsay, the LEO must document the facts and 
88

circumstances under which the person made the statement. 

This may later aid the AUSA in getting the statement 

admitted at trial under a hearsay exception.

3.11.1 “Excited Utterances”

The law recognizes that a person is unlikely to fabricate a 

“non- testimonial” statement he makes under emotional 

stress. The elements of the exception are: (a) the person 

making the statement experienced a startling event; (b) the 

person made the statement while under the stress or 

excitement (influence) the event caused; and (c) the statement 

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

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

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

statement would meet the exception for excited utterance.

3.11.2 Statements Regarding Medical Diagnosis /

Treatment

The law recognizes that when a person is speaking to health 

care providers about their illness or injury, they are unlikely 

to fabricate those facts. The elements of this exception are: (a) 

the person makes a statement 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 to whom the 

speaker makes 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. The 

person can make such statements to nurses, emergency 

medical technicians, or to those working in the medical field 

who are treating the person.
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3.12 Statements, Reports, and Courtroom Testimony 

Except for some expert witnesses and in a few other limited 

circumstances, witnesses cannot testify from their reports or 

notes. Officers should check with the AUSA about whether to 

bring reports or notes to trial.

An opposing party can use a law enforcement officer’s reports 

and notes, as well as written statements and notes of other 

witnesses, to impeach a witness’s testimony in court. 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 opposing party can use this contradiction to 

impeach the witness.

Memory can be “refreshed” if a witness forgets a fact while 

testifying. Counsel can use anything to refresh a witness’s 

memory. Counsel can use sketches, photos, physical objects, 

reports, notes, and even documents prepared by other LEOs or 

non-LEOs. Documents or statements used to refresh a 

witness’s memory do not have to be made under oath. If the 

attempt to refresh the witness’s memory succeeds, the witness 

can then testify from memory. The report or item that counsel 

used to refresh memory is neither read nor given to the jury.

Notes, reports, statements or other writings that counsel uses 

to refresh a witness’s testimony are available to the opposite 

party. Opposing counsel can then use these items to crossexamine 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, the LEO 

interviews a witness and the witness needs to refresh their 

memory with an item, the LEO should obtain the item so it 

will be available at trial to refresh the witness’s memory. For 

example, if during an interview a witness must refer to a 

phone bill to remember when she spoke to someone, the officer 
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should obtain a copy of the phone bill so it will be available in 

court should the AUSA need to refresh the witness’s memory.

3.13 Authenticating Digital Evidence From Computers 

3.13.1 Involving Computer Forensics Experts

Computer forensics experts should participate in all search 

warrant phases (determining whether probable cause exists to 

search computers, drafting the search warrant, and executing 

the search). Failure to include a computer expert can 

jeopardize the admissibility of the evidence seized. Title 18 

U.S.C. § 3105 provides that no person, except in the aid of the 

officer requiring it, may be present and acting in the execution 

of a search warrant. If law enforcement officers require the 

assistance of a computer forensics expert, they should make 

sure the warrant authorizes the presence of the expert to aid 

in the search.

3.13.2 Evidentiary Issues and Authentication

Digital evidence is nothing but an electronic series of “0s” and 

“1s” that a computer program interprets. Below are some of 

the specific and significant issues related to the admission of 

digital evidence at trial.

• 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. This 

might include:
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• Where the storage device (drive, disk, or other medium) 

was found;

• Who had access to the data;

• Trace evidence (DNA, fingerprints);

• Passwords and screen names and who had access to 

them;

• Names on computer folders containing the data or 

passwords; and

• Sources of e-mails that contain attachments.

3.13.3 Admissibility of Digital Evidence

In order for the government to establish that digital evidence 

is admissible, it needs to be prepared to show that a reliable 

computer program converted the digital evidence into a 

readable format. It is easy to alter computer records, and 

opposing parties may allege that computer records lack 

authenticity because someone tampered with or changed the 

records after their creation. A few things can be done to reduce 

this possibility. For example, Windows® based computers 

associate certain file types with the software designed to create 

and read them, so it is important to seize the computer 

software to show computer-generated “associations” between 

particular file types and software. Having the program that 

creates the data is a substantial step in proving the same 

program will accurately print it out. Many software 

applications embed data that establishes when a document 

was created and/or modified, and that identifies the computer 

on which this was done. Forensic experts should look for this 

data.
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The government can overcome the claim that the programs are 

unreliable by providing sufficient facts to support a finding 

that the records are trustworthy. The defense is afforded an 

opportunity to inquire into the accuracy of those records. 

3.13.4 Best Evidence Rule - “Original” 

According to F.R.E. 1001(d): “For electronically stored 

information, “original” means any printout — or other output 

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

Thus, an accurate printout of computer data satisfies the Best 

Evidence Rule. Doe v. United States, 805 F. Supp. 1513, 1517 

(D. Haw. 1992). 

3.13.5 Hearsay Issues

Whether the hearsay rules apply depends on whether the 

document is one generated by a computer or contains 

statements of a human being. Documents created by humans 

that are stored on a computer are “statements” if a party offers 

the document 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.) The LEO must still 

provide facts to prove it was the defendant’s statement. 

Records that a computer generates are NOT hearsay. Hearsay 

rules apply only to statements of humans. Records generated 

by a computer from computer data (phone billings, bank 

statements and the like) are admissible if the party offering 

them into evidence authenticates then as business records. 

Other “statements” that are seized from a computer must meet 

a hearsay exception, or the party offering the statement into 

evidence must locate the author who can authenticate and 

testify to the statement. For example, a letter found on the 

computer from someone other than the defendant must meet 
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hearsay exceptions before the court will admit the contents of 

the letter for the truth of the matter asserted.
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95

Chapter 4 - 

 

Courtroom Testimony 

4.1 Introduction to Courtroom Testimony ....................... 96

4.2 Stages of a Criminal Trial ......................................... 97

4.3 Effective Witness Characteristics .............................. 97

4.3.1 Meeting the Jury’s Expectations.................................97

4.3.2 Characteristics That Jurors Expect of Witnesses......97

4.4 Essential Testimonial Skills .................................... 101

4.4.1 Manner of Answers....................................................101

4.4.2 Skills that Make Testimony Convincing ..................101

4.5 Using Statements and Reports When Testifying .... 106

4.6 Witness Examination and Impeachment ................ 107

4.6.1 Direct Examination ...................................................107

4.6.2 Cross-examination .....................................................108

4.6.3 Redirect and Re-Cross-Examination ........................109

4.6.4 Impeachment..............................................................110

4.7 Law Enforcement Officers and Cross-Examination 110

4.7.1 Yes or No Questions...................................................111

4.7.2 Putting Words in the Witness’s Mouth ....................111

4.7.3 Badgering the Witness ..............................................111

4.7.4 Do Not Volunteer Information ..................................112

4.7.5 Pre-Trial Discussions with the Prosecutor...............112

4.7.6 Repetitive Questions..................................................112

4.7.7 Compound Questions.................................................113

4.7.8 Rapid-fire Questions ..................................................113

4.7.9 Admitting Mistakes ...................................................113

4.7.10 Possibilities .............................................................114

4.7.11 Friendly Defense Counsel ......................................114

4.7.12 Twisting Prior Testimony ......................................114

4.7.13 Conflicting Witness Testimony..............................115
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4.7.14 Impeachment by Prior Statements........................115

4.7.15 Corrected Statements.............................................115

4.7.16 Previous Lies...........................................................115

4.8 Subjects Not to be Volunteered When Testifying .... 116

4.8.1 Prior Criminal History.............................................116

4.8.2 Issues Involving Constitutional Rights ...................116

4.8.3 Suppressed Evidence.................................................117

4.9 Forensics Expert Witness Testimony ...................... 117

4.9.1 Expert Assistant/Consultant.....................................117

4.9.2 Expert Witness...........................................................119

4.9.3 Lawyer-Client Privilege.............................................120

4.9.4 The Standard for Qualifying as an Expert Witness 120

4.10 Frye / Daubert / Kumho Tire Co. ............................. 121

4.10.1 Frye v. United States .............................................122

4.10.2 Daubert v. Merrell Dow Pharmaceuticals, Inc. ....122

4.10.3 Kumho Tire Co. v. Carmichael ..............................122

4.10.4 The Procedure for Qualifying as an Expert Witness

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

4.11 Opinion Testimony ................................................... 125

4.11.1 Basis of Opinion......................................................125

4.11.2 Opinion on an Ultimate Issue................................127

4.11.3 Prohibited Opinions................................................128

4.12 Testifying as a Forensics Expert Witness ............... 128

4.12.1 The Role of an Expert Witness.............................129

4.12.2 Preparation .............................................................132

_______________________________________________________

4.1 Introduction to Courtroom Testimony 

No matter how well law enforcement officers perform their 

duties, justice ultimately depends upon the facts presented in 

court and how they are perceived by the jury or by the judge in 
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a bench trial. In many criminal trials, a law enforcement 

officer will testify in the government’s case. Since a witness’s 

credibility is crucial to obtaining convictions, it is imperative 

that law enforcement officers are familiar with traits and 

characteristics that can both favorably and adversely impact 

their credibility at trial.

4.2 Stages of a Criminal Trial 

The stages of a criminal trial are discussed in the Courtroom 

Evidence chapter of this book.

4.3 Effective Witness Characteristics 

4.3.1 Meeting the Jury’s Expectations

Juries are made up of people from the community who do not 

have any connection to the case and usually are not very 

familiar with the criminal justice system. Jurors did not ask to 

be there, but usually try to do their best to be fair to both sides. 

They expect government witnesses to be professional, 

unbiased and to tell the truth at all times. Jurors must be 

educated about the law and the facts of the case they are asked 

to judge, and the law enforcement witness plays a big part in 

that. In a criminal case, the purpose of the trial is to determine 

whether the accused is guilty of the crime charged and to see 

that justice is served.

4.3.2 Characteristics That Jurors Expect of Witnesses

a. Tell the Truth

The most important testimonial characteristic of any 

witness at a trial or hearing is to tell the truth. There is no 

substitute for telling the truth. A witness’s failure to tell the 

truth is a crime, otherwise known as perjury. But even more 

importantly, it is a morally reprehensible act that 
98

jeopardizes the very foundations of our criminal justice 

system. As a law enforcement officer, it is your sworn legal 

and professional duty to tell the truth in each and every 

case.

b. Be Impartial and Objective

Law enforcement witnesses need to be impartial, objective, 

and dispassionate at all times, but especially in court. Such 

witnesses are more likely to be seen as reliable and 

dependable servants of the people and, therefore, more 

likely to be believed by the fact finder, i.e., the jury or judge.

c. Treatthe Jury, Judge, and Counsel with Respect

Law enforcement witnesses should treat the judge, jury, 

and counsel (prosecutor and defense attorney) with respect 

in court. They should not show deference to either the 

government or defense. You are there to tell the truth about 

what happened in the case. Witnesses should provide both 

the prosecutor and the defense attorney with the same 

courtesies that they themselves would want to receive.

d. Be Prepared

To be an effective witness, an officer must be thoroughly 

prepared. There is usually a substantial delay between time 

of arrest and trial. Delays usually benefit the defendant, as 

witnesses’ memories may become fogged because of the 

passage of time, a witness may move away or evidence can 

be lost or destroyed. While we cannot prevent all of these 

occurrences, to refresh your memories, you should 

thoroughly review your notes, reports, case file, and 

evidence associated with the case before trial. Even visiting 

the crime scene may prove to be helpful. Reviewing physical 

evidence can help as well. Furthermore, it is permissible 

and even advisable for witnesses to review their testimony 
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with the prosecutor and actually practice answering 

questions from the witness stand. The prosecutor needs to 

know what you know about the case to put together a proper 

direct examination. As the old adage goes, proper prior 

preparation prevents poor performance.

e. Be Properly Attired

A witness’s credibility can be adversely affected by his or 

her choice of clothing and jewelry, as well as by personal 

grooming habits. A common sense axiom is to dress for 

success. Wearing a suit or coat and tie with minimal 

tasteful jewelry, if any, is preferable. Clothing that is clean, 

pressed and conservative in appearance is appropriate for 

court appearances. Your agency may wish you to wear your 

uniform, in which case follow your agency’s policies. 

Officers are making non-verbal statements in the way they 

dress. It is important to make the right statement. Most 

federal courts have court rules indicating what is or is not 

appropriate attire for witnesses. Furthermore, court rules 

will identify those items that are not permitted in court. 

Check with your Assistant United States Attorney (AUSA) 

as to the court’s rules or preferences. Some federal judges 

have been known to ensure that witnesses learn lessons the 

hard way via contempt proceedings. This is especially true 

with respect to carrying weapons, cell phones, pagers, noise 

making jewelry, etc. Most judges have little patience for law 

enforcement officers who are less than professional in their 

appearance.

Although it may be fashionable to wear tie tacks of the trade 

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

pins of social, fraternal, or religious organizations in the 

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

witness wants to make in court. This type of accessory is 

not acceptable when testifying.
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f. Demeanor Counts

Juries and judges consider witness demeanor in evaluating 

credibility (i.e., believability). How one approaches the witness 

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

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

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

“Yes, I do,” in response to the oath makes a positive first 

impression, for example. Witnesses should make a conscious 

effort to avoid sending unwanted messages through nonverbal 

communications. For example, slouching in the witness chair 

or rolling your eyes in response to a defense counsel question 

can be seen as an attempt to ridicule or show negative feelings 

about that person. Regardless of how you see the defense 

counsel, it is not the act of a professional, so do not do it.

g. Stay Serious

Trials are very serious occasions. When you testify, project a 

professional image and avoid laughing or smiling. Do not be 

robotic, but it is not a time for joking or laughing. Defense 

attorneys will commonly draw attention to an officer who 

smiles or laughs by asking, “Do you think this is funny?” Since 

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

provide the defense attorney with the opportunity to imply 

that they believe the matter to be less than serious. Be 

professional at all times.

h. Avoid a “Bad Attitude”

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

Answering clearly, succinctly, accurately, and professionally 

makes your testimony more convincing. A witness may be 

truthful in his or her testimony, but the judge or jury may not 

give the witness much credence because of a “bad attitude.” So, 

avoid sarcastic responses and superior attitudes.
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i. Admit Mistakes

Witnesses often make mistakes in their testimony. It has 

happened to just about every witness out there. If it happens, 

do not try to hide it or sweep it under the rug and hope nobody 

notices it. It will come out sooner or later. A mistake must be 

corrected as soon as possible, even if it means bringing it up in 

the middle of a different line of questioning. If the subject 

matter of the mistake comes up during cross-examination or 

redirect examination, make it a point to identify the mistake 

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

mistake while testifying, a witness should inform the 

prosecutor at the earliest opportunity.

4.4 Essential Testimonial Skills 

4.4.1 Manner of Answers

Professional demeanor and the manner in which a witness 

responds to questions are important. They help ensure that 

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

Officers should conduct themselves in a professional manner 

at all times and be forthright in their testimony.

4.4.2 Skills that Make Testimony Convincing

a. Listen and Answer

Witnesses should listen carefully to the questions asked and 

think about their responses before responding. This is very 

important. Do not rush to blurt out an answer as soon as you 

think you know what the question is going to be. You may not 

know where the attorney is heading with the question until it 

is fully asked. On the other hand, while answers should not be 

rushed, long delays before answering simple questions can 

lead the jury to question one’s credibility. Use common sense 

to answer questions in a thoughtful, professional, and 
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forthright manner.

b. Give Audible Responses

Court reporters and other audio recording equipment take 

down witness testimony verbatim. Witnesses who nod their 

heads to answer a question cannot be recorded. Speak so that 

the court reporter or recording equipment can record the 

response. Similarly, if a witness is using a gesture by holding 

his or her hands apart to provide a visual portrayal of size and 

saying, “The knife was this big.” only the comment will be 

recorded and not the gesture. The witness must provide an 

audible response that matches the size he or she is conveying 

with the gesture (“It was about 14 inches long.”) Witnesses 

should speak clearly, intelligibly, and loudly enough so they 

will be heard and understood throughout the courtroom. 

Monotone presentations are far less effective than 

presentations which contain variations in volume, speed of 

delivery, and tone. Be mindful that some courtrooms have 

microphones. Do not assume the microphone is for sound 

projection though. Many microphones only record testimony.

c. Do Not Volunteer Information

Witnesses should answer the question that is asked of them, 

and should not add information that is not requested. 

Witnesses should not allow subsequent silence by counsel to 

lead them to believe more information is required. This is a 

common tactic used to get witnesses to offer information that 

was not requested. If they want more information from you, 

they will ask. The general rule when testifying is to address 

the question asked and then wait for the next question.

d. Wait for Rulings on Objections

The witness must stop speaking when either the prosecutor or 

defense counsel objects to a question. Allow the judge to rule 
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on the objection. If an objection has been overruled, that means 

the question is acceptable and the witness may answer it. If 

the witness has forgotten the question, he or she should ask 

counsel to repeat the question. If the judge sustains the 

objection, that means that there is a legal problem with the 

question and therefore the witness must not answer it. Simply 

wait for the next question.

e. Prosecutorial Assistance

When asked a question that a witness finds uncomfortable, he 

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

defense counsel’s question is improper, the prosecutor will 

object. At times, there may be tactical reasons that the 

prosecutor may want the witness to answer questions that are 

otherwise objectionable. If a witness does not understand the 

question or the question is unclear, he or she can ask that the 

question be repeated or rephrased.

f. Speaking to the Judge

Unless the judge speaks directly to a witness, the witness 

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

judge does address a witness directly, it is appropriate to 

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

term “Judge,” especially in federal court. Address requests 

to repeat, clarify, or rephrase questions to the counsel who 

asked the question. Address requests to refer to witness 

notes or reports while testifying to the examining counsel 

as well.

g. Avoid “Cop Talk”

Avoid using legal phrases or law enforcement jargon such 

as, “I proned him out,” “I did a protective sweep,” “I exited 

the vehicle,” or “I frisked him.” These terms have particular 

meanings that are not known to the general public. To be 
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an effective witness, testify in a language jurors will 

understand. Officers should simply explain in everyday, 

plain language what they did. If a specific police term is 

used, then the witness should provide a definition or 

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

judge understands the terminology you are using.

h. Just the Facts

Witnesses may testify only about matters that are within 

their personal knowledge. They can testify to what they 

observed, heard, smelled, tasted, or touched. Law 

enforcement witnesses may also provide an opinion based 

on a rationally based perception, on a limited basis. 

However, you are not considered an “expert witness” as 

courts use that term. (Please see the section on Expert 

Witnesses.) Witnesses should not offer an opinion unless 

specifically asked for the opinion. Witnesses must have a 

basis of knowledge based on facts to provide an opinion. 

Officers should try not to testify about what others 

observed. Let others testify to what they observed.

i. “I Don’t Know”

“I do not know” means that the witness never knew the 

information that is the subject of the question. If the correct 

answer to the question is “I do not know,” say so in the same 

voice and manner used to answer other questions. It signals to 

the attorneys that you do not know and there is no point in 

asking again or if something else could refresh your memory.

j. “I Don’t Recall”

This answer implies the witness once knew the information, 

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

say it. This answer is not a truthful one if the witness 

remembers, but just did not want to answer the question that 
105

is asked. Counsel may offer to refresh your memory with 

something else, such as your police report. 

k. Positive and Definitive Answers 

Give positive, definite answers when testifying. Avoid saying 

things such as, “I think,” or “I believe.” What an officer thinks 

or believes is generally not relevant. If an officer does not know 

the answer, he or she should say so. If a witness cannot offer a 

precise answer but can provide an estimate, the witness 

should state that it is only an estimate. For example, “I would 

estimate that the defendant was about fifteen yards away.” 

l. Memorized Testimony 

Witnesses should not try to memorize reports so that they can 

provide a verbatim response. Memorized testimony is suspect 

and is generally not believable. The idea is to be very familiar 

with the facts of the case so that you can answer competently 

and confidently.

m. Speak to the Audience 

Generally speaking, witnesses should make eye contact with 

those whom they are addressing. Maintaining eye contact with 

those being addressed is an intangible human attribute that 

provides a measure of respect to the recipient. Since either the 

prosecutor or defense counsel are asking you questions, you 

will normally look at them while they are asking each 

question. If it is a short answer, such as “yes” or “no” then look 

at them and give your answer. If however, your answer 

requires some level of explanation of the facts or to define 

something such as a “Terry frisk,” then look at the jury while 

explaining. It will draw the jury in and engage their interest 

in your testimony. By maintaining eye contact with the jury, 

the witness provides deference to the jury, while 

simultaneously establishing credibility. At trial, when a jury 
106

is present, the most important people in the court who require 

our attention are the members of the jury. That is because the 

jury is the fact finder that makes life-altering decisions 

concerning the defendant based on the evidence provided. So 

remember, for important aspects of testimony, witnesses 

should always address the jury.

4.5 Using Statements and Reports When Testifying 

Generally, the basis for a witness’s testimony must be the 

personal knowledge and recollection of that witness. 

Therefore, except for some expert witnesses and other limited 

circumstances, witnesses cannot testify from their reports or 

notes. Officers should check with the prosecutor about whether 

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

defense counsel will object if a witness tries to bring something 

to the witness stand. Officers should provide notes, reports, 

etc. to the prosecutor prior to trial. The court can allow a 

witness to refer to them during testimony if the prosecutor can 

lay an appropriate evidentiary foundation during trial.

A copy of your report will be given to the defense counsel prior 

to trial, as is required by law. Reports and notes, as well as 

written statements and notes of other witnesses, can be used 

to impeach a witness’s in-court testimony. For example, if a 

witness testifies that the license plate of a certain car was 123 

ABC, but the report or the on-scene notes indicate 456 XYZ, 

the defense can use the contradiction to impeach the witness.

It is not unusual for a witness to forget a fact or facts, thus 

frustrating the witness’s ability to answer certain questions. A 

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

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

memory. Sketches, photos, physical objects, reports, notes, and 

even documents prepared by other LEOs or non-LEOs can be 

used. Documents or statements used to refresh a witness’s 

memory do not have to be made under oath. When a witness’s 
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memory is refreshed, the witness will then testify from 

memory. The report or item that was used to refresh memory 

is neither read nor given to the jury. It is used for the sole 

purpose of allowing the witness to jog his or her memory. 

Notes, reports, statements or other writings or things that are 

used to refresh a witness’s memory will be made available to 

defense counsel immediately after the witness testifies, if they 

do not already have a copy. Defense counsel can use them for 

the purpose of cross- examination and/or impeachment.

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

they too may need their memories refreshed. Officers should 

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

enforcement officer witness’s memory so it will be available at 

trial. For example, if during an interview a witness must refer 

to a phone bill to remember when they spoke to someone, the 

officer should obtain a copy of the phone bill prior to trial so it 

will be available in court should the Assistant United States 

Attorney need to refresh the witness’s memory.

4.6 Witness Examination and Impeachment 

During trial, do not expect to be able to hear the testimony of 

other witnesses in order to prepare. F.R.E. 615, often referred 

to as the rule of sequestration, requires the court to order 

witnesses excluded so that they cannot hear other witnesses’ 

testimony at a party’s request.

4.6.1 Direct Examination

When counsel calls a witness to the stand to testify, he or she 

will ask the witness a series of questions about the case. This 

part is referred to as “direct examination.” Direct examination 

questions may not be leading; that is, the question may not 

suggest the answer. In other words, direct examination 

questions are opened ended (e.g. “Tell me what happened.”) 

Generally, direct examination questions may not suggest the 
108

answer to the question that is asked. (e.g. “Your investigation 

began on January 2 of this year, didn’t it?”) Direct examination 

questions will ordinarily begin with who, what, why, where, 

when, or how. In effect, direct examination questions allow 

witnesses to explain in their own words what happened. Prior 

to testifying, law enforcement witnesses should review with 

counsel their potential subject matter of their testimony and 

be prepared and able to testify without prompting. Testimony 

needs to flow smoothly, like a good interview.

Direct examination usually follows this general format:

• Introduction – establishing credentials.

• General investigation.

• Highlighting more specific acts.

• Introducing exhibits.

• Admissible case conclusions / decisions / opinions.

4.6.2 Cross-examination

When the counsel that called the witness to the stand has 

finished questioning the witness, the witness is then “passed” 

to opposing counsel for cross-examination. Cross-examination 

has two primary goals:

• To discredit the opposing party’s case, and

• To elicit favorable facts and thereby advance the case of 

the cross-examining party.

In pursuit of those goals, opposing counsel is permitted to ask 

leading questions during cross-examination. Leading 

questions suggest an answer. They are framed in a way which 
109

attempts to evoke a specific response from the witness. In 

effect, leading questions allow counsel to suggest the answer 

and the witness simply agrees or disagrees with the question. 

So, instead of having to ask a question such as “What 

happened?” counsel could ask “Isn’t it true, Officer, that you 

pulled your pistol on my client and shot her for no reason?”

Cross-examination can at times seem quite ordinary and to the 

point. However, as the previous example suggests, crossexamination can also be designed to put a twist on facts to 

make the witness’s acts appear to be unseemly, crude, selfserving, unprofessional, and even criminal. Be mindful this 

type of question can be asked.

Understanding and preparing for common cross-examination 

techniques is essential. Later some common cross-examination 

techniques are discussed. Regardless of what technique is 

used, the number one rule is always to tell the truth.

4.6.3 Redirect and Re-Cross-Examination

Once opposing counsel has concluded cross-examination, there 

will be an opportunity for redirect examination, typically 

limited to matters addressed in the cross-examination. It is a 

chance to clear up any misunderstandings and misconceptions 

generated by cross- examination. For example, if the witness 

was not allowed to explain an answer during crossexamination, counsel may ask for the explanation then. 

However, the questions counsel asks on re-direct must be open 

ended, and witnesses should be prepared to testify to these 

explanations, knowing that counsel cannot lead them to the 

answers.

After redirect, the court may allow opposing counsel the 

opportunity to re-cross. Re-cross is usually limited, however, 

to matters raised for the first time during redirect. Whether or 

not re-cross is allowed is entirely up to the discretion of the 
110

court.

4.6.4 Impeachment

On cross-examination, an attorney is permitted to impeach the 

witness. Impeachment in this context means to closely 

question a witness to determine the truth; the action of calling 

into question the integrity or validity of someone or something. 

Impeachment in court is used to attack the credibility of the 

witness. There are many ways to impeach a witness’s 

testimony. Often during the impeachment process, the 

witness’s professionalism and integrity are attacked. 

Regardless of counsel’s method, officers must always ensure 

that they tell the truth. Regardless of what happens, remain 

professional at all times.

4.7 Law Enforcement Officers and Cross-Examination 

Officers are trained to be in control of the scene and the 

situation. Testifying in court, especially on cross-examination, 

can be frustrating for officers, because they are not in control 

of this environment. In this section we will look at how cross 

examination works, including some cross-examination 

techniques commonly used in court. To be properly prepared, 

officers must learn how cross-examination techniques work. 

Officers must trust their prosecutor to ask the right questions, 

and especially on redirect examination to provide them the 

opportunity to clear up any confusion caused by defense 

questions during cross-examination.

Below are some common cross-examination techniques. 

Regardless of what technique is used, the obvious response is 

always to tell the truth and be professional in the process of 

doing so.
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4.7.1 Yes or No Questions

Generally, counsel is entitled to a yes or no answer if one is 

possible. Such an answer is not possible if the witness does not 

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

is a compound question (two or more questions combined as 

one and asking for a single response). Attempts to fully explain 

an answer can be cut-off, but the prosecutor is entitled to have 

the explanation provided on re- direct examination. On crossexamination, the witness may also answer each part of the 

compound question separately.

4.7.2 Putting Words in the Witness’s Mouth

Trial advocates are trained to “testify for the witness” on crossexamination and then get the witness to agree with what the 

lawyer said. That is the essence of leading questions that begin 

(or end) with, “Wouldn’t you agree that....?”, “Isn’t it true ?”, or 

“You did X, didn’t you?” To properly answer a leading question 

that suggests the answer, carefully listen to what the defense 

counsel is asking. If what the defense suggests is true, then 

answer yes. If not, answer no or provide the correct answer.

4.7.3 Badgering the Witness

Badgering the witness is a technique trial lawyers use to 

undermine a witness’s testimony. Defense counsel knows that 

if a witness, especially a law enforcement officer, becomes 

angry on the witness stand, two things might happen. First, 

the officer focuses on anger and not the facts of the case, 

thereby becoming distracted. Second, the officer can appear to 

be biased, which may be perceived by the jury as lacking the 

ability to objectively deal with the issues. Do not become angry 

or antagonistic, even when the defense counsel is clearly doing 

his or her best to bait you. An officer who is angry often 

exaggerates or appears to be less than objective. Juries expect 

officers to remain professional at all times.
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4.7.4 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. If the 

lawyers need more information, they will ask. Do not feel you 

must start adding extra information. Sometimes defense 

counsel will look at the witness and not say anything after the 

witness has answered, which suggests to the witness that he 

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

tactic and wait for the next question.

4.7.5 Pre-Trial Discussions with the Prosecutor

There is nothing improper about meeting with the prosecutor 

before trial to discuss or even practice your anticipated 

testimony. Such meetings are a 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, “I met with the prosecutor to prepare for my testimony” 

if that is a truthful and correct answer. This does not mean 

that the prosecutor told you what to say. The prosecutor needs 

to know what facts you know about this case and whether 

there are any problems with it. It is far better to tell the 

prosecutor up front, before trial, if there were any problems or 

mistakes. Remember, you and the prosecutor are working 

together in court. It will be bad for both of you if a mistake is 

brought out in court which the prosecutor knows nothing 

about.

4.7.6 Repetitive Questions

The defense attorney may rephrase questions and ask the 

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

emphasize a defense-favorable point, or to see if the answer 

will change. When a defense attorney starts asking the same 

question in a slightly different manner, the witness should 
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respond by saying, “As I stated earlier....” Do so without 

sounding sarcastic. Always remain professional.

4.7.7 Compound Questions

Often defense counsel will ask two questions in one. For 

example, defense counsel may ask, “Officer, didn’t you arrest 

my client and search him?” If the witness was both the 

arresting officer and the officer that conducted the search, the 

answer to the question is easy. However, if the witness 

arrested the defendant and a partner searched the defendant, 

it is important for the witness to respond correctly. At trial, 

witnesses quite often fail to recognize that two questions are 

being asked as one. If a witness does not recognize that there 

are two questions in one, he or she is playing directly into the 

defense counsel’s hands for subsequent impeachment.

4.7.8 Rapid-fire Questions

This technique is meant to rush the testimony, denying the 

witness the time to understand the question and provide a 

correct answer. Resist the temptation to keep up with the 

defense counsel’s tempo. Witnesses should speak at their own 

pace when providing truthful and accurate answers. The 

witness controls the pace of the testimony, not the lawyer. The 

witness is not obligated to follow the defense counsel’s 

questioning tempo.

4.7.9 Admitting Mistakes

You may get a question such as the following: “Have you ever

made a mistake?” The answer will of course be “Yes.” Do not 

be afraid to admit mistakes. Jurors find officers who honestly 

admit mistakes to be credible. We all make mistakes; it is a 

human condition. There is nothing wrong with making 

mistakes. The real question of course is whether you made a 

mistake in this case. The answer to that question is usually 
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“No.”

4.7.10 Possibilities

“Isn’t it possible that....” Anything is possible, but in many 

cases not probable. Testifying that something is possible, but 

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

while remaining believable. If not allowed to provide a 

complete answer, a simple, “Yes” or “Yes, but not likely” will 

do. The prosecutor can ask you to elaborate in re-direct 

examination.

4.7.11 Friendly Defense Counsel

Some defense attorneys may appear friendly to witnesses 

during cross-examination. This may lull the witness into 

becoming overly familiar with defense counsel or appearing to 

be less than professional. It may also give the impression to 

the law enforcement witness that this defense attorney will 

not try to impeach him/her. That is not true. Beware the 

“friendly defense counsel” as their tactics may be more subtle, 

but their goal is the same; to discredit your testimony. 

Additionally, if the defense attorney speaks softly or in a 

friendly tone and manner, the witness will often do the same. 

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

may not speak up, the jurors may not hear the testimony, and 

as a result, the testimony will be less effective.

4.7.12 Twisting Prior Testimony

The defense attorney may restate a witness’ testimony, and in 

doing so, misstate it. In such cases, listen very carefully when 

the defense attorney starts with the question “You stated 

earlier....” Do not presume that the defense counsel will 

portray the prior testimony accurately. In many cases, defense 

counsel may intentionally misstate the testimony. If prior 

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

4.7.13 Conflicting Witness Testimony

If two or more officers have participated in the same 

investigation, the defense attorney may question both officers 

separately about each officer’s observations in an attempt to 

find conflicts. In fact, only one officer will be allowed in the 

courtroom at a time during the trial, so you will not be there 

to hear the other officer’s testimony. A witness should not be 

intimidated into admitting an error, declaring another officer 

“wrong,” or losing confidence in his or her command of the 

facts. Just tell the truth!

4.7.14 Impeachment by Prior Statements

Showing a conflict between a witness’s earlier statement or 

report and the witness’s in-court testimony can be powerful 

impeachment. A witness should review prior statements 

(preliminary hearings, grand jury testimony, motions 

hearings, etc.) before trial whenever possible. That way you 

will be able to know if the current testimony is truly different.

4.7.15 Corrected Statements

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

question arises when there is a mistake in testimony that is 

corrected or there is an irreconcilable difference between 

testimony and a prior statement. Distinguish between a lie or 

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

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

lies. Mistakes are inadvertent, not intentional deceptions.

4.7.16 Previous Lies

“Have you ever told a lie before?” The answer will of course be 

yes; everyone has lied. Leave it to the prosecutor to conduct a 
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redirect that any lie was never under oath, not in a report or 

in an official matter; and certainly not in regard to this case. 

4.8 Subjects Not to be Volunteered When Testifying 

4.8.1 Prior Criminal History

Unless specifically directed by the Court (or by the counsel 

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

defendant’s prior criminal history when you are testifying. The 

admissibility of a defendant’s criminal history is subject to 

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

specific questions that require precise responses. 

4.8.2 Issues Involving Constitutional Rights 

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

exercise his constitutional right to remain silent or request 

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

enforcement in a custodial setting has the constitutional right 

to remain silent and have counsel present during questioning. 

Furthermore, a defendant can exercise a constitutional right 

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

Commenting on the fact that a defendant exercised a 

constitutional right is considered legally prejudicial and is a 

recognized basis for a mistrial or reversal of a conviction. 

If asked at trial about what happened when the defendant was 

arrested or booked, the witness should testify about what he 

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

over to the jail”) without mentioning their Miranda warnings. 

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

mention specific Miranda warnings, the defendant’s 

invocation of the right to silence or invocation of the right to 

counsel. Wait for specific questions to be asked as to the 

defendant’s invocation of rights. 
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4.8.3 Suppressed Evidence 

If the judge grants a motion to suppress evidence in a 

suppression hearing or at the trial, such evidence is not 

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

suppressed evidence. The jury is not to consider the 

suppressed evidence. For example, if a confession is obtained 

in violation of Miranda, the judge will suppress the confession. 

In other cases, evidence may be suppressed because it was 

obtained in violation of the Fourth Amendment. 

While there are exceptions that might allow suppressed 

evidence to be admitted during the trial for specific limited 

purposes, no witness should mention or allude to evidence that 

has been suppressed unless specifically asked. Under the Fruit 

of the Poisonous Tree Doctrine, evidence that is derived from 

evidence that has been suppressed cannot be referenced as 

well. Unless the witness is specifically asked about evidence 

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

questions from counsel before addressing evidence that has 

been suppressed. 

4.9 Forensics Expert Witness Testimony 

4.9.1 Expert Assistant/Consultant 

An expert assistant/consultant is someone either retained by 

the prosecution or defense team, or detailed to them by either 

the convening authority or the military judge to assist the 

respective counsel during the investigative stage of the 

prosecution process. Expert assistance may also be requested 

or assigned for any other stage of the proceedings. Expert 

assistants/consultants most commonly assist prosecution and 

defense counsel in the evaluation of scientific or technical 

evidence that the government intends to offer at trial. 
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a. Production and Employment.

Rules for Courts-Martial (R.C.M.) 703(d) governs the 

production and employment of an expert in military courtsmartial. Under the Military Rules of Evidence (M.R.E.), an 

accused may hire an expert assistant/consultant. (M.R.E. 

706(c)). If the defense or the government is seeking to have an 

expert produced and to have the government cover the 

expense, counsel must, prior to employing the expert and with 

notice to the opposing counsel, submit a request to the 

convening authority to authorize employment and fix 

compensation.

The request must include a complete statement of reasons why 

the expert is necessary, and an estimate of the costs. A threestep test determines whether such government-funded expert 

assistance is necessary.

• Why is the expert assistance needed?

• What would the expert assistance accomplish?

• Why is counsel unable to gather and present the 

evidence that the expert assistant/consultant would be 

able to develop?

If the convening authority denies its request, the defense 

raises the issue with the military judge. If the military judge 

determines that the expert is relevant and necessary, an order 

will be issued requiring the government to provide the expert 

or an adequate substitute. An adequate substitute may be a 

government employee. The proceedings will be abated on the 

failure by the government to produce the court-ordered expert 

assistant/consultant or a court- ordered adequate substitute.
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b. Lawyer-Client Privilege.

M.R.E. 502, Lawyer-Client Privilege, protects a lawyer’s 

“representative” from compelled disclosure to a third party. A 

“representative” of a lawyer is a person employed by or 

assigned to assist a lawyer in providing professional legal 

services. If the prosecution and/or defense obtains an expert 

assistant/consultant, then the expert is a “representative” of 

the lawyer and becomes part of the respective trial team. 

Therefore, communications between the prosecution expert 

assistant/consultant and trial counsel and communications 

between the defense expert assistant/consultant and defense 

counsel and/or the accused are privileged. Counsel may not 

interview an expert assistant without the approval of the 

opposing counsel.

Federal Rules of Evidence (F.R.E.) 501 and 502 provide that 

the privileges recognized and the parameters of each in the 

federal court systems are established by federal common law 

(U.S. Supreme Court and federal circuit court decisions). 

Attorney-client privilege and attorney work product privilege 

are well established. Attorney-client privilege is extended to 

third parties hired by a lawyer or a client to assist in providing 

legal services to a client.

4.9.2 Expert Witness

An expert assistant/consultant is not automatically entitled to 

testify as an expert witness. Trial/Defense counsel make the 

determination as to whether to call an expert 

assistant/consultant to testify as an expert witness. The 

decision is made when the attorney feels it will benefit the case 

to have the expert testify and render an opinion on questions 

which fall within their respective area of expertise. Ordinarily, 

an expert assistant/consultant will be listed and called as a 

witness.
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4.9.3 Lawyer-Client Privilege

With very few, limited exceptions based on specific, particular 

facts, once a party lists its expert assistant/consultant as a 

witness, lawyer- client privilege no longer applies, and the 

opposing counsel is free to contact and interview the expert 

witness. The testifying expert’s work product, including drafts

of reports, are then discoverable and not protected by lawyerclient privilege.

4.9.4 The Standard for Qualifying as an Expert Witness

a. M.R.E. 702

M.R.E. 702, Testimony of Experts, governs when a witness 

may testify in courts-martial as an expert and give an 

opinion about the meaning and/or significance of factual 

evidence.

If scientific, technical, or other specialized knowledge will 

assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert 

by knowledge, skill, experience, training, or education, may 

testify thereto in the form of an opinion or otherwise. If (1) 

the testimony is based on sufficient facts or data, (2) the 

testimony is the product of reliable principles and methods, 

and (3) the witness has applied the principles and methods 

reliably to the facts of the case.

b. F.R.E. 702

F.R.E. 702, Testimony by Expert Witnesses, governs when 

a witness may testify in federal civilian courts as an expert 

and give an opinion about the meaning and/or significance 

of factual evidence.

A witness who is qualified as an expert by 
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knowledge, skill, experience, training, or 

education may testify in the form of an opinion 

or otherwise if:

(a) The expert's scientific, technical, or other 

specialized knowledge will help the trier of fact 

to understand the evidence or to determine a 

fact at issue;

(b) The testimony is based on sufficient facts 

or data;

(c) The testimony is the product of reliable 

principles and methods; and

(d) The expert has reliably applied the 

principles and methods to the facts of the case.

The judge is the “gatekeeper” responsible for determining:

 

• Whether scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand 

the evidence or to determine a fact in issue,

• Whether the witness is qualified as an expert by 

knowledge, skill, experience, training, or education, 

and

• Whether the witness has applied the principles and 

methods reliably to the facts of the case.

4.10 Frye / Daubert / Kumho Tire Co. 

The sufficiency of the facts and reliability of the methodology 

have been defined by a series of federal court cases. 
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4.10.1 Frye v. United States 

Frye sets forth the "General acceptance" test, commonly called 

the “Frye Test.” Frye v. United States, 293 F. 1013 (D.C. Cir. 

1923). The court in Frye ruled that while courts will go a long 

way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from 

which the deduction is made must be sufficiently established

to have gained general acceptance in the particular field in 

which it belongs. 

4.10.2 Daubert v. Merrell Dow Pharmaceuticals, Inc. 

In Daubert, the Supreme Court held that the trial judge is to 

act as a "gatekeeper" and determine whether the expert's 

proposed testimony is helpful to the trier of fact and whether 

the testimony truly relates to issues in the case. Daubert v. 

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Based 

on Daubert, the following are factors that guide the decision 

on whether the expert's methodology is reliable: 

• Has the theory or technique been tested? 

• Has the theory been subjected to peer review discussion 

in publications? 

• Does the theory or technique have a high known or 

potential rate of error? 

• Has the theory or methodology attracted widespread 

acceptance in the relevant scientific or professional 

community? In this sense, Daubert incorporates the 

Frye test. 

4.10.3 Kumho Tire Co. v. Carmichael 

In Kumho, the Supreme Court held that Daubert’s 
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“gatekeeping” standard applies to all expert testimony by 

stating, “The initial question before us is whether the basic 

gatekeeping obligation applies only to scientific testimony or 

to all expert testimony. We, like the parties, believe that it 

applies to all expert testimony.” Kumho Tire Co. v. 

Carmichael, 526 U.S. 137 (1999).

4.10.4 The Procedure for Qualifying as an Expert 

Witness 

The process for qualifying and then offering a witness as an 

expert is sometimes referred to as “voir dire” – the examination 

of the qualifications of the witness to be considered an expert. 

a. Direct Examination 

Outside of the presence of the members (jury), the witness will 

be called to the stand by the party offering the witness as an 

expert. That counsel will conduct direct examination to 

establish the witness’s credentials – education, training, 

experience, and skills. 

A qualifications checklist may include the following: 

• Business or Occupation: What -- how long -- description 

of field -- company or organization -- capacity -- how long 

-- where located -- prior positions -- description of 

positions. 

• Education: Undergraduate school -- degree -- when 

graduated. Post-graduate school -- degree -- when 

graduated -area of study. 

• Training: Formal courses -- what -- when -- trained 

under recognized expert -- who -- when -- how long. 

• Licenses: What -- when reviewed -- specialty 
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certification -- exams required -- when -- requirements.

• Professional Associations: What -- positions held. Other 

Background. Teaching positions -- publications --

lectures -- consulting work.

• Expert Witness at Trials: How many -- which side.

• Experience in Specialty: Types of examinations 

conducted – how many. Ever perform a test -- how many? 

Does that experience include? Over these years of 

practice, how many have you (bought, sold, dealt with, 

installed, taken, examined, analyzed, etc.)?

Then counsel will ask about the methodologies and theories 

applied to the specific facts of the case. Counsel may ask the 

witness to describe those methodologies and theories in detail. 

Counsel will then ask if the methods and theories used have 

been tested, subject to peer review, have a high rate of error, 

and have been generally accepted by the pertinent 

scientific/professional communities.

At the conclusion of the direct examination, counsel will 

formally offer the witness as an expert and state the specific 

area of expertise. The judge will defer a finding until after 

cross-examination.

b. Cross-examination

The opposing counsel may stipulate to the witness’s 

qualifications and not object to the offer of the witness as an 

expert and the judge’s finding that the witness is qualified as 

an expert. If not, opposing counsel will have an opportunity to 

cross-examine the witness, attacking the witness’s credentials 

– education, training, experience, and skills – and/or the 

methodologies theories used.
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Because an individual’s credentials and methodologies are 

being challenged and because a judge will determine whether 

the qualifications are sufficient and the witness is competent 

to give an expert opinion, the process can be unnerving, no 

matter how many times a person has been through it.

c. Judge’s Finding

The judge may allow re-direct and re-cross examination. At the 

conclusion of the voir dire, the judge will enter a finding on the 

record as to:

• Whether scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the 

evidence or to determine a fact in issue,

• Whether the witness is qualified as an expert by 

knowledge, skill, experience, training, or education, and

• Whether the witness has applied the principles and 

methods reliably to the facts of the case.

When the judge determines that the threshold has been met, 

the witness will be qualified as and may then testify as an 

expert.

4.11 Opinion Testimony 

M.R.E. 702 and F.R.E. 702 provide that a witness who has 

been found to be an “expert” by the judge will be allowed to 

provide opinion testimony to the trier of fact – the 

members/jury or the judge in a bench trial.

4.11.1 Basis of Opinion.

Although they vary slightly in wording, M.R.E. 703 and F.R.E. 

703 are substantively the same.
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a. M.R.E. 703

The facts or data in the particular case upon which an expert 

bases an opinion or inference may be those perceived by or 

made known to the expert at or before the hearing. If of a type 

reasonably relied upon by experts in the particular field in 

forming opinions or inferences upon the subject, the facts or 

data need not be admissible in evidence in order for the opinion 

or inference to be admitted. Facts or data that are otherwise 

inadmissible shall not be disclosed to the members by the 

proponent of the opinion or inference unless the court 

determines that their probative value in assisting the jury to 

evaluate the expert's opinion substantially outweighs their 

prejudicial effect.

b. F.R.E. 703.

An expert may base an opinion on facts or data in the case that 

the expert has been made aware of or personally observed. If 

experts in the particular field would reasonably rely on those 

kinds of facts or data in forming an opinion on the subject, they 

need not be admissible for the opinion to be admitted. But if 

the facts or data would otherwise be inadmissible, the 

proponent of the opinion may disclose them to the jury only if 

their probative value in helping the jury evaluate the opinion 

substantially outweighs their prejudicial effect.

c. Foundations for Facts Used to Form the Opinion

1. Facts Personally Observed

The foundation for this basis ordinarily includes:

• Where, when, and how the fact(s) were observed;

• The fact(s) observed;
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• Who else, if anyone, was present?

2. Fact(s) Made Known to the Expert by Others 

Before or at the Hearing.

The foundation for this basis ordinarily includes:

• The source of the fact(s);

• The fact(s) reported;

• It is customary within the specialty to consider such 

fact(s) from such sources.

4.11.2 Opinion on an Ultimate Issue

a. M.R.E. 704

Testimony in the form of an opinion or inference otherwise 

admissible is not objectionable because it embraces an 

ultimate issue to be decided by the trier of fact.

b. F.R.E. 704

(a) In General - Not Automatically 

Objectionable. An opinion is not objectionable just 

because it embraces an ultimate issue.

(b) Exception. In a criminal case, an expert 

witness must not state an opinion about whether 

the defendant did or did not have a mental state 

or condition that constitutes an element of the 

crime charged or of a defense. Those matters are 

for the trier of fact alone.

The essential difference between the two rules is that F.R.E. 
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704 sets out a specific exception in criminal cases regarding 

the mental state of the defendant.

4.11.3 Prohibited Opinions

Under both rules an expert witness may not give an opinion as 

to the guilt or innocence of the accused/defendant, the 

credibility or believability of a witness, or state a legal opinion.

Disclosure of Facts or Data Underlying Expert Opinion:

a. M.R.E. 705

The expert may testify in terms of opinion or inference and 

give the expert’s reasons therefore without first testifying to 

the underlying facts or data, unless the military judge requires 

otherwise. The expert may in any event be required to disclose 

the underlying facts or data on cross-examination.

b. F.R.E. 705

Unless the court orders otherwise, an expert may 

state an opinion--and give the reasons for it--

without first testifying to the underlying facts or 

data. But the expert may be required to disclose 

those facts or data on cross- examination.

Nothing in either rule prohibits the expert from testifying 

about some or all of the underlying facts or data during direct 

examination.

4.12 Testifying as a Forensics Expert Witness 

Cases are won and lost every day on the effectiveness of 

witnesses. Any witness – civilian witnesses, victims, law 

enforcement officers, and expert witnesses – can turn a strong 

case into an acquittal. If the witnesses do not testify clearly, 
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concisely, completely, and compellingly, a case may be lost 

regardless of how well it was investigated or how strong it is.

Taking the stand and testifying is nerve-wracking for 

everyone, including law enforcement officers and expert 

witnesses who testify often due to the nature of their work. 

Just like mere mortals, expert witnesses get nervous, forget 

things, and may have difficulty conveying the facts in court.

Understanding the role of an expert witness and getting 

thoroughly prepared are the best ways to reduce the stress and 

be a confident, effective witness.

4.12.1 The Role of an Expert Witness

Why are experts used in an investigation and called to 

testify in the trial? The ultimate goal is to help the factfinder solve the mystery – decide what happened and who 

did it. Expert witnesses accomplish this in a number of 

ways.

a. Fact Witness.

Experts are used during an investigation to gather, 

analyze, and explain the meaning and significance of 

evidence that may establish identity, establish contact 

and/or connection to victim/crime scene, corroborate or 

discredit party/witness statements, and exclude innocent 

explanations and mistake of fact. When an expert discovers 

and/or seizes tangible, real evidence, that expert often 

serves as a fact witness to lay the foundation for the 

admissibility of that evidence at trial.

b. Educator

One who possesses expertise on a particular subject has 

more knowledge than the average person on that subject. 
130

This creates the need to educate the fact-finder – the judge 

and/or members (jury) and, sometimes even counsel – on 

subjects less understood by the average person but 

necessary to resolve the issues of fact presented by a 

particular case. Experts must be able to clearly and 

effectively communicate with fact-finders in a way that they 

will understand. In this way, experts educate fact-finders 

on what the evidence is and why it is – or is not – reliable.

Experts also interpret the evidence and educate fact-finders

on the significance and meaning of the evidence, such as the 

method and mechanism of injury, amount of force 

necessary, patterns of injury and constellation, cause of 

death/prognosis.

New breakthroughs and developments in science and 

technology occur every day. Because of the proliferation of 

media, including television and all kinds of new methods of 

communication and their connection to the internet, the 

general public learns of these developments almost 

immediately. Television shows and movies, both fictional 

and reality based, often include the new sciences and 

technologies, but also often create misunderstandings and 

misconceptions about their use, effectiveness, and 

significance. The general public often gains its knowledge 

and understanding of these sciences and technologies solely 

from these media sources and, thereby, develops unrealistic 

impressions and misunderstandings. Experts educate factfinders to correct those misunderstandings and dispel 

myths.

Clear and persuasive communication skills are required to 

accomplish this role. The most effective experts are those 

who explain as much as possible in layman’s terms and use 

demonstrative evidence to highlight the facts relied on to 

develop the facts and opinion(s).
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c. CSI Effect.

The CSI Effect has been described as the belief by the 

general public that nearly infallible science and technology 

exists and is available for use in criminal investigations and 

their expectation that it should be/will be used and the 

results presented at trial.

A study reported in the National Institute of Justice 

Journal found in a survey of prospective jurors that:

• 46 percent expect to see some kind of scientific 

evidence in every criminal case;

• 22 percent expect to see DNA evidence in every 

criminal case. A higher percentage expect to see DNA 

evidence in the more serious violent offenses, such as 

murder or attempted murder (46 percent) and rape 

(73 percent);

• 36 percent expect to see fingerprint evidence in every 

criminal case. A higher percentage want to see 

fingerprint evidence in breaking and entering cases 

(71 percent), any theft case (59 percent), and in crimes 

involving a gun (66 percent);

• 32 percent expect to see ballistic or other firearms 

laboratory evidence in every criminal case.

If the prosecutor relies on circumstantial evidence, the 

prospective jurors said they would demand some kind of 

scientific evidence before they would return a guilty verdict.

The corollary perspective is that if the prosecution fails to 

or chooses not to perform scientific tests and present the 

results at trial, fact- finders may reasonably doubt the 

strength of the government’s case. In other words, the 
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absence of proof is the proof of absence. There may be the 

assumption that a party will naturally offer the evidence if 

it exists, and failure to do so means it doesn’t exist.

These perceptions by the general public have led to the use 

of scientific testing and the offering of scientific evidence on 

unimportant collateral points and when time and expense 

constraints would otherwise argue against it.

In order to preempt or overcome potential defenses, some 

trials now include experts as “negative-evidence witnesses” 

to tell fact-finders why certain tests were not used and 

when, during an investigation, it is not unusual not to find 

certain kinds of physical evidence.

4.12.2 Preparation

Being completely prepared is the best way to reduce the 

inherent stress of testifying and to increase one’s effectiveness 

as a witness. At a bare minimum, experts must obtain, 

maintain, and always utilize the knowledge and skills 

necessary to perform required the tasks. This will better 

ensure credible results, persuasive evidence, and confidence 

that enhance a witness’s effectiveness. Lack of preparation, on 

the other hand, will signal to the fact-finder a lack of 

professionalism, a lack of belief in the worthiness of the case, 

a lack of concern for that type of victim and crime, and a lack 

of confidence in the science, methods, and techniques.

Preparation to testify in a specific case begins with first 

involvement and continues throughout the investigation. It 

includes decisions about what to do and how to do it. Factfinders need to know what was done, why it was done, and how 

it was done. Preparation also includes decisions about what 

not to do. Failure to conduct tests and/or failure to use 

available resources are typical subjects for cross- examination. 

Understanding from the beginning that tests, processes, and 
133

results will be reviewed and questioned by other experts, 

opposing counsel, and fact-finders will ensure that correct 

decisions and sound judgments are made that will withstand 

scrutiny. Conduct every investigation from the beginning with 

the expectation that the case will go to trial, requiring direct 

testimony to be followed by vigorous cross-examination.

a. Reports

Accurate, clear, concise, and complete reports are essential. 

There is no limit as to how much information may be included 

in such reports. If necessary, supplemental reports may be 

added later. If information was at all a factor in making 

decisions about whether and how to test or process, include it 

in the report.

Independent memory of the scene and what was done and not 

done there will likely be compromised by the passage of time 

and other intervening cases, some of which may be similar in 

nature. Comprehensive and conscientiously drafted reports 

offer the best way to refresh the expert’s memory of a specific 

case, both in preparation for a hearing or trial and at trial 

should the expert momentarily forget a particular fact 

necessary to answer a question by an attorney or the judge.

Independent memory of the scene and events will also be 

challenged by opposing counsel on cross-examination – “if it’s 

not in the report, it did not happen.” Omitted facts may 

adversely affect witness and process credibility. This can be 

very effective cross-examination because judges and many 

members (jurors) write reports for a living. They understand 

and appreciate the need for accuracy and completeness in 

reports. Their livelihood may depend on it.

Review and know all reports pertaining to the case. In doing 

so, if you notice a discrepancy between reports or determine 

something previously written was mistaken, immediately 
134

bring that to the prosecutor’s attention. Testifying is not an 

open book exam. Except in very limited circumstances, a 

witness must testify from personal knowledge and may not 

testify from a report. No one, especially opposing counsel and 

opposing experts, should know the report better than its 

author.

b. Counsel

Preparation is a two-way street. The expert witness must 

know how the legal system works, and counsel has to 

understand the work performed and the report(s) prepared by 

the expert. Therefore, preparation includes close consultation 

with counsel. It is critical that the expert witness and counsel 

work as a team. The expert must, as necessary and 

appropriate, educate counsel in the relevant science, 

techniques and methodologies so that the team may function 

well and compelling evidence may be developed and presented.

Through early, frequent, and consistent consultation with 

counsel, the expert will be better able to understand both 

counsel’s expectations and the theme of the case, the expert’s 

role and significance in the case, and the purpose/objective(s) 

of the direct examination. Therefore, the expert must be 

prepared to explain as much as possible in layman’s terms and 

use demonstrative evidence to highlight the facts relied on to 

develop the opinion. This also will help to ensure that all of the 

facts have been disclosed as required by law.

It is imperative that counsel be aware of all aspects of the 

investigation and evidence – the strengths and weaknesses of 

the case. When counsel knows the good, the bad, and the ugly 

of the case, the team can plan and work to overcome obstacles, 

shore up weaknesses, and prepare for challenges by opposing 

counsel.
135

Through early, frequent, and consistent consultation with 

counsel, the expert will learn about and understand the 

opposing party and counsel. This includes opposing party 

goals, the theory of their case, their potential witnesses, 

including opposing experts, potential defenses, 

observations/findings made that contradict defense theory, 

facts that opposing counsel may want to elicit during crossexamination, and tactics likely to be employed by opposing 

counsel.

If there is an opposing expert, it is also imperative that the 

reports, processes, methods, and results be reviewed 

thoroughly and discussed with counsel.
136

 
137

Chapter 5 - 

 

Criminal Law – Introduction 

5.1 Introduction to Criminal Law .................................. 137

5.1.1 What is a Crime?........................................................137

5.1.2 Elements of Criminal Statutes .................................138

5.1.3 Felonies and Misdemeanors......................................141

5.1.4 Attempts .....................................................................141

5.1.5 Jurisdiction and the Assimilative Crimes Act .........142

_______________________________________________________

5.1 Introduction to Criminal Law 

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

federal laws presented in this book, you will learn how to 

analyze and apply criminal statutes. Following this 

introduction, the Handbook is divided into numerous chapters 

focused on various statutes.

Certain concepts of criminal law apply to all federal crimes. 

These concepts include: elements of an offense, the difference 

between a felony and misdemeanor, and jurisdiction. 

Additionally, the Assimilative Crimes Act outlines when and 

how state statutes are assimilated into federal law and can be 

prosecuted in federal court.

5.1.1 What is a Crime?

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

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

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

a civil action (claim and/or lawsuit). Crimes are different from 

torts in that the government prosecutes those engaged in 

criminal activity for the purpose of punishing the wrongdoer 
138

and deterring others from similar conduct. Aggrieved parties 

bring tort actions, seeking compensation for damage to 

property and/or injury to person. Crimes and torts are not 

mutually exclusive remedies. For example, if a perpetrator 

assaults a law enforcement officer, the government could 

prosecute the perpetrator. In addition, the officer could pursue 

a tort action (sue) against the perpetrator for the harm 

incurred by the assault.

5.1.2 Elements of Criminal Statutes

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

Officers might also hear this term while on the job. “Common 

law” refers to ancient rights, customs, and principles 

developed over time through the English court system. The 

courts actually adopted and followed the common customs 

known and used by the people throughout the entire English 

realm. Through this process, the principles and rules of 

criminal and tort law were developed. Written statutes and the 

court decisions interpreting those statutes eventually replaced 

these common law principles and rules.

There are no common law crimes in the United States. All 

criminal laws in the United States are found in written 

statutes (statutory law). To substantiate criminal charges that 

actually go to trial, the government must establish each 

element of the offense to a probable cause threshold. Probable 

cause can be defined as facts and circumstances that would 

lead a reasonably prudent person to believe that a criminal 

offense has probably taken place and the person charged with 

that offense probably committed it. To obtain a conviction at 

trial, the government must prove each element of the offense 

beyond a reasonable doubt.

Most crimes consist of both a prohibited act and a criminal 

intent. An individual must both intend to commit a prohibited 

act and then act in furtherance of that intent. However, action 
139

is not required for all crimes. For example, the government 

could criminally charge a parent with child abuse for not 

acting to care for his or her child. Failure to act can be a crime. 

To convict for a criminal offense, the government must prove 

beyond a reasonable doubt that a defendant with the required 

mental state performed a prohibited act (or failed to perform 

an act) that caused the proscribed social harm.

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

– general intent offenses and specific intent offenses. A general 

intent offense only requires the intent to do the prohibited act. 

No specific mental state, evil motive or intent to violate the 

law is required. All the government must prove is that the 

perpetrator committed the act willfully, deliberately, or 

intentionally and that it was not an accident or a 

misadventure. It does not matter that harm was not intended; 

it is sufficient that the act was intended and that harm 

resulted. For example, if a defendant intentionally hits a 

person and gives him a broken nose, it does not matter that 

the defendant intended to give the victim a broken nose. All 

the government must prove is the defendant intended to 

perform the act that resulted in harm.

A specific intent offense requires proof of a particular mental 

state. A specific intent offense requires proof that the 

perpetrator desired the consequences of the actions, as set 

forth in the statute. Common specific intent terms include, but 

are not limited to: intentionally, willfully, maliciously, 

purposefully, with intent to, through design, with malice 

aforethought, and premeditation. For example, the elements 

of burglary generally consist of a breaking and entering in the 

nighttime with the intent to commit a felony therein. Thus, for 

specific intent offenses (offenses that contain these special 

specific intent terms), the government must prove beyond a 

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

the perpetrator’s specific intent. Thus for burglary, the 

government would have to prove beyond a reasonable doubt 
140

that the defendant broke and entered, in the nighttime, and at 

the time of the breaking and entering the defendant had the 

intent to commit a felony.

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

suspect’s admissions, confessions, and statements to others 

are the best and most compelling ways to prove intent. It may 

also be possible to prove the required intent through the 

suspect’s actions. For example, if a perpetrator stabbed a 

victim in the chest with deep penetrating wounds 50 times, we 

can reasonably infer the perpetrator intended to kill the 

victim.

The elements of crimes are best explained by example. The 

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

offense. Murder requires a criminal act, the unlawful killing of 

a human being, and a specific intent, malice aforethought (the 

specific intent to kill when the perpetrator performed the act). 

To prove the offense, the government must prove that a human 

being was unlawfully killed, and at the time of the killing the 

person who took the human life did so with malice 

aforethought.

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

makes it an offense to knowingly or intentionally possess a 

controlled substance. Therefore, to secure a conviction, the 

government must prove that the defendant “knowingly or 

intentionally” possessed a controlled substance. If the 

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

controlled substance, he would in fact “intentionally possess” 

the purse and its contents. However, the defendant would not 

be guilty of a crime unless the government could prove the 

defendant “knew” the purse contained a controlled substance.

Motive can be an important issue for both the officer and 

prosecutor. The government can use motive to solve crimes by 

identifying potential perpetrators and proving criminal intent. 
141

Motive can help explain the “who and why” of a crime. 

However, motive itself is generally not a required element of

proof of a crime. As a general rule, the government does not 

have to prove why someone committed the crime. Hate crimes 

and terrorism statutes are exceptions to this rule. To obtain a 

conviction for a hate crime, the government must prove that 

the act was committed because of the special status (sex, age 

or race) of the victim. For terrorism, the government must 

prove violence against civilians for the purpose of advancing 

political or religious agendas.

5.1.3 Felonies and Misdemeanors

All criminal statutes must penalize the performance of the act 

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

would have no meaning. These penalties can include fines, 

incarceration and death. The range of potential penalties is 

generally based on the severity of the offense.

Criminal statutes classify crimes by the maximum penalty 

authorized. Whether a statute classifies a crime as a felony or 

a misdemeanor depends on the possible term of punishment 

authorized by the statute and not the actual sentence imposed. 

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

an offense for which the maximum term of imprisonment 

authorized by statute is more than one year. A misdemeanor 

is an offense for which the maximum term of imprisonment

authorized by statute is one year or less. An infraction is a type 

of misdemeanor where the term of imprisonment, if any, is no 

more than five days. (For further discussion of the 

classification of federal crimes, see the Federal Court 

Procedures chapter.)

5.1.4 Attempts

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

to commit a crime, the government must show the defendant’s 
142

intent to commit the crime together with the commission of an 

act that “constitutes a substantial step towards commission of 

the crime.” A substantial step must be more than mere 

preparation; it must be a substantial movement towards the 

commission of the offense. The government’s burden of proving 

the defendant took a substantial step toward commission of 

the crime protects a defendant from being convicted for mere 

thoughts, desires or motive. The degree of a defendant’s 

performance of a substantial act in furtherance of the illegal 

activity is a factual issue depending on the circumstances of 

each particular case. Something less than a completed 

transaction supports an attempt, provided there is a 

substantial step toward completion of the crime.

5.1.5 Jurisdiction and the Assimilative Crimes Act

Jurisdiction is the power of the government to act when a 

criminal offense has been committed. In many cases, the 

federal government can act regardless of the location of the 

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

employee and a federal crime to steal federal government 

property regardless of where the assault or theft takes place. 

For other violations, however, the federal government and its 

law enforcement officers are only empowered to act when the 

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

state in which the federal property is located may also have 

jurisdiction over the same offense. Under these circumstances, 

whether the federal or state government, or both, can exercise 

jurisdiction depends on whether the federal government has 

exclusive, concurrent, or proprietary jurisdiction over the place 

where the offense occurred.

a. Exclusive Jurisdiction

Exclusive federal jurisdiction property provides only the 

United States Government with criminal jurisdiction over the 
143

area. All policing, investigating, and prosecuting of offenses is 

conducted solely by the federal government.

b. Concurrent Jurisdiction

Concurrent jurisdiction means that both the United States 

Government and the state government wherein the property 

is located have criminal jurisdiction over the area. Both the 

United States and the state authorities can police, investigate, 

and prosecute offenses committed within areas of concurrent 

jurisdiction. This means that an individual who commits an 

act in a place of concurrent jurisdiction that violates both 

federal and state law can be tried twice (once in state court and 

once in federal court). Each government makes an 

independent prosecutorial decision.

c. Proprietary Jurisdiction

Proprietary jurisdiction means that the United States has no 

more authority over the area than any other owner of private 

property. Proprietary jurisdiction provides no special 

authority or power to the federal government. For example, if 

the federal government leases an office building to house 

various federal agencies, it has only proprietary jurisdiction. 

The state would investigate and prosecute most crimes 

committed in the building. However, if a perpetrator assaults 

a federal government employee in the building or steals federal 

property from there, the federal government could also 

prosecute the perpetrator in federal court for those federal 

offenses.

d. Assimilative Crimes Act

Many criminal offenses found in state law are not found in 

federal law. This is important when investigating offenses on 

exclusive and concurrent jurisdiction property. What happens 

if someone commits an act on either exclusive or concurrent 
144

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

federal criminal offense? Does this mean the perpetrator 

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

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

an act occurs on exclusive or concurrent jurisdiction property, 

and there is no federal criminal statute that prohibits the act, 

the Assimilative Crimes Act allows the federal government to 

adopt a state criminal statute that prohibits the act, and 

prosecute it in federal court as a federal criminal offense. 

However, the federal government cannot assimilate a state 

statute if there is a federal statute that criminalizes the 

specific conduct.
145

Chapter 6 - 

 

Criminal Law – Assault / Bribery 

6.1 The Law of Assault and Battery .............................. 145

6.2 Assault – Title 18 U.S.C. § 111 ................................ 146

6.2.1 Elements.....................................................................146

6.2.2 Individuals Covered Under the Statute ...................147

6.2.3 Forcibly – Defined......................................................147

6.2.4 Engaged In or On Account of Official Duties – Defined

.......................................................................148

6.2.5 Penalty........................................................................149

6.3 Bribery - Title 18 U.S.C. § 201 ................................. 149

6.3.1 Elements.....................................................................150

6.3.2 Public Officials – Defined ..........................................150

6.3.3 Witnesses....................................................................151

6.3.4 Directly or Indirectly .................................................152

6.3.5 Anything of Value ......................................................152

6.3.6 To Influence Any Official Act....................................152

6.3.7 Gratuities ...................................................................153

_______________________________________________________

6.1 The Law of Assault and Battery 

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

assault by offer and an assault by attempted battery. An 

assault by offer is any willful threat to inflict injury upon 

another person with the apparent present ability and intent to 

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

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

committed when John, while waving a baseball bat, 

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

It is reasonable for Bob to apprehend immediate bodily harm 

based on John’s words and actions. For the expectation of harm 
146

to exist, the intended victim must be aware of the potential 

intended harm. A present apparent ability and intent to inflict 

bodily harm must actually exist and the victim must be aware 

of it. A threat of the use of force sometime in the indefinite 

future (“One of these days, I’m going to....”) does not constitute 

an offer assault. An assault by attempted battery is an 

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

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

is not necessary for the victim to be aware of the failed 

attempt.

A battery is an intentional, harmful or offensive touching of 

another person, without consent. Actual injury is not required. 

Minimal physical contact can qualify as a violation. 

Chargeable offenses include being punched, poked and spit 

upon.

A person does not need to actually touch another with his own 

body to commit a battery. Objects held by a person are 

considered extensions of the body. If John hits Bob in the head 

with a baseball bat he has committed a battery. Similarly, 

items thrown at another are extensions of the person who 

threw them. If John throws a rock at Bob and hits him in the 

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

6.2 Assault – Title 18 U.S.C. § 111 

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

impeding certain officers or employees,” does not distinguish 

between the separate offenses of assault and battery. Federal 

courts have determined that both types of conduct are 

prosecutable under § 111.

6.2.1 Elements

• The Defendant forcibly assaults;
147

• Any current or former federal employee;

• While they are engaged in or because of their official 

duties.

6.2.2 Individuals Covered Under the Statute

As mentioned before, § 111 provides protection for any person 

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

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

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

§ 1114. Title 18 U.S.C. § 1114 provides for the protection of 

officers and employees of the United States, and reads, in part, 

as follows:

...any officer or employee of the United States or 

of any agency in any branch of the United States 

Government (including any member of the 

uniformed services) . . . or any person assisting 

such an officer or employee in the performance of 

such duties or on account of that assistance...

This means that every federal employee (including federal law 

enforcement officers) and every person who assists a federal 

employee in the performance of his official duties is afforded 

protection under § 111.

6.2.3 Forcibly – Defined

Title 18 U.S.C. § 111 makes it a crime to “forcibly” assault, 

resist, oppose, impede, intimidate or interfere. “Forcibly”

applies to each of the distinct ways in which the statute can be 

violated. For there to be a violation of § 111, the force element 

must be satisfied. Forcibly includes force actually used or 

imminently threatened. The government must establish the 

defendant’s behavior would have reasonably inspired fear in a 

reasonable person. Proof of actual physical contact or threats 
148

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

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

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

an officer in an extremely agitated manner would satisfy the 

force requirement. However, “tensing up” in anticipation of 

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

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

to an assault. Mere passive resistance is not sufficient for a 

conviction under § 111.

6.2.4 Engaged In or On Account of Official Duties – Defined

Section 111 covers current federal officers and employees (and 

those assisting them) if they are assaulted while “engaged in” 

the performance of official duties. For example, the 

government could prosecute a suspect who punches a federal 

law enforcement officer who is on duty and making an arrest. 

The suspect may be charged with assault under § 111. When a 

suspect assaults a federal employee who is engaged in the 

performance of official duties, it is not necessary for the 

government to prove that the defendant knew that the person 

he assaulted was a federal employee. Therefore, if a suspect 

assaults an undercover officer who is performing undercover 

duties, the suspect may be charged under § 111 even though 

he was unaware the person he assaulted was a federal officer.

Current federal employees (and those assisting them) who are 

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

something done while performing official duties. For example, 

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

off duty, is seen by the arrestee’s husband. The husband 

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

wife. The husband can be charged with assault under § 111. 

Also, it is possible a person could be prosecuted under § 111 

for assaulting a federal employee if the only reason for the 

assault was that the person was a federal employee.
149

Former federal employees (and those assisting them) are 

covered by § 111 if assaulted on account of something done 

while performing official duties. For example, a federal law 

enforcement officer arrests a suspect who the government 

later convicts and sends to prison. The officer leaves 

government employment. The suspect, after his release from 

prison, locates and assaults the former federal officer because 

he is still angry at having been arrested, tried and convicted. 

The suspect may be charged with assault under § 111, because 

he assaulted the former federal officer on account of something 

the officer did while performing official duties.

6.2.5 Penalty

When the defendant’s conduct amounts to only simple assault 

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

misdemeanor is not more than one year in prison. In an assault 

that involves contact, but does not result in bodily injury, the 

penalty is not more than eight years in prison. If the assault 

results in bodily injury or involves a deadly or dangerous 

weapon, the maximum punishment is not more than twenty 

years in prison. Almost any object has the potential for being 

a deadly or dangerous weapon. Examples from cases including 

violations of § 111 which resulted in enhanced penalty for 

using a deadly or dangerous weapon include hitting an officer 

over the head with a phone, throwing a water pitcher at an 

Assistant United States Attorney, hitting a federal officer with 

a stick, and attempting to run over a federal agent with an 

automobile.

6.3 Bribery - Title 18 U.S.C. § 201 

Title 18 U.S.C. § 201 entitled Bribery of Public Officials and 

Witnesses, was enacted to protect government officials and 

witnesses from corrupting influences while they are 

performing their official duties. It covers any situation in 
150

which the judgment of a government official or witness might 

be influenced because of payments or gifts made, while 

performing official duties.

6.3.1 Elements

• The Defendant corruptly;

• Offers/gives or requests/receives;

• Anything of value;

• To/from a public official;

• To influence an official act.

6.3.2 Public Officials – Defined

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

(or person who has been selected to be a public official), directly 

or indirectly, anything of value, with the intent to influence 

any official act by that public official. Conversely, it is a crime 

for a public official (or person who has been selected to be a 

public official) to either, directly or indirectly, corruptly 

demand, seek, receive, accept, or agree to accept anything of 

value, in return for influencing any official act by that public 

official. The term “public official” includes any officer or 

employee or person acting for, or on behalf of, the United 

States, or any department or branch of the United States 

government, or a juror.

As an example, a person violates the statute when they offer a 

federal agent five thousand dollars to destroy a piece of 

evidence the federal agent was going to use in a criminal case. 

It is also an offense for the agent to accept the five thousand 

dollars in exchange for destroying the evidence. Furthermore, 
151

it is an offense for the agent to offer to destroy the evidence for 

five thousand dollars.

6.3.3 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’s testimony under oath, at any trial, 

hearing, or other proceeding before any court, any committee 

of either House or both Houses of Congress, or any agency, 

commission, or officer authorized by the laws of the United 

States to hear evidence or take testimony. It is also a crime to, 

directly or indirectly, corruptly give, offer, or promise anything 

of value to any witness, with the intent to influence the witness 

to be absent from any trial, hearing or other proceeding as 

described above.

It is also a crime under § 201 for a witness to, directly or 

indirectly, corruptly demand, seek, receive, accept, or agree to 

accept, anything of value, in return for being influenced in 

testimony as a witness or in return for being absent from any 

trial, hearing, or other proceeding as described above.

For example, it is a crime to offer Bob, the witness, five 

hundred dollars to testify that the defendant was at his house 

watching television when the robbery occurred, when this is

not true. It would also be a crime for Bob to accept the five 

hundred dollars in exchange for his fabricated testimony. It 

would also 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. The government could charge Bob under § 

201 if he received the five hundred dollars in exchange for 

intentionally being absent from court. Furthermore, it would 

also be crime if Bob initiated the offense by requesting money 

in exchange for fabricated testimony or offering to fail to 

appear and testify.
152

6.3.4 Directly or Indirectly

In the previous examples, the suspect gave currency directly 

to either the “public official” or witness. It is also a crime under 

§ 201 if something of value is given “indirectly” to someone 

selected or designated by the “public official” or witness. For 

example, if a person agreed to give five thousand dollars to the 

federal officer’s spouse, in exchange for the officer destroying 

a piece of evidence in a case, this would qualify as a violation 

of § 201. Using the same example, it would also be a violation 

if the person gave the five thousand dollars to a private school 

to cover the cost of tuition for the officer’s children.

6.3.5 Anything of Value

To charge a defendant with bribery under § 201, the 

government must prove that “a thing of value” was given, 

offered, promised, demanded, sought or accepted. A “thing of 

value” is broadly construed, with the focus being on the 

subjective value the defendant places on the item. Examples of 

“things of value” include: U.S. currency, automobiles, jewelry, 

promises of future employment, sex, and all-expense paid trips 

or vacations. It would be a crime under § 201 for a person to 

give a federal officer an all-expense paid trip to Hawaii in 

exchange for the officer destroying a piece of evidence in a 

criminal case.

6.3.6 To Influence Any Official Act

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

connection between the “thing of value” and an official act to 

be performed by the public official. The suspect must give, 

offer, promise, demand, seek or accept the “thing of value” 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 
153

thousand dollars to alter the results of the audit to show that 

no taxes are owed, he may be charged with violation of § 201. 

The individual offered a “thing of value” to corruptly influence 

the IRS agent to violate his official duty to perform accurate 

audits. Likewise, the IRS agent commits the offense of bribery 

if he suggests the taxpayer gives him a thousand dollars to 

alter the results of the audit to reflect the taxpayer owed no 

taxes. If the taxpayer accepts the offer, the taxpayer has 

committed the offense of bribery as well.

6.3.7 Gratuities

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

involves giving, offering, promising, demanding, seeking, 

receiving, or accepting anything of value for, or because of any 

official act performed, or to be performed by the “public 

official.” A gratuity is similar to a bribe in that a “thing of 

value” is involved; however, there is no corrupt intent to 

influence an official act by the “public official.” It is sufficient 

to demonstrate that a gratuity was offered or requested, given 

or accepted for the performance of an official act. The statute 

prohibits indirect benefits provided to a public official’s family 

members as well. It is no defense that the gratuity had no 

effect upon the actions taken by the public official.

Agency administrative policies may also prohibit government 

employees from receiving or taking gifts of all types and value. 

Though some acts may not be worthy of criminal prosecution, 

the employee could be disciplined for violations of the agency 

policy. Should there be a question as to what a federal law 

enforcement officer may or may not be authorized to receive, 

the officer should check with their ethics counselor. Every 

agency has a designated ethics official that will provide 

guidance.
154
155

Chapter 7 - 

 

Criminal Law – Federal Firearms Offenses 

7.1 Introduction ............................................................. 155

7.2 Title 18 U.S.C. § 922(d) - Prohibited Persons .......... 156

7.2.1 Definition of “Firearm”..............................................156

7.2.2 Prohibited Persons.....................................................156

7.2.3 Pardon or Expungement............................................159

7.3 Enhanced Mandatory Penalties .............................. 160

7.3.1 Introduction................................................................160

7.3.2 Definitions - 18 U.S.C. § 924(c)(3).............................160

7.3.3 Enhanced Mandatory Penalties................................161

7.4 Possession of Firearms in Federal Facilities ........... 161

7.5 Weapons Requiring Registration ............................. 162

7.5.1 Introduction................................................................162

7.5.2 Procedure....................................................................162

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

.......................................................................162

7.6 Tracing a Firearm through the ATF........................ 164

7.6.1 Introduction................................................................164

7.6.2 Information Required to Trace a Firearm................164

7.6.3 Information Gained from Successful Trace..............165

_______________________________________________________

7.1 Introduction 

All law enforcement officers face the possibility of 

encountering firearms on the job. This course is an 

introduction to selected federal firearms laws. It does not 
156

address agency-specific officer concerns, such as the ability to 

carry off-duty, the ability to carry personal weapons, etc.

Many states and municipalities have firearms laws which are 

more restrictive than federal law. Officers should acquaint 

themselves with state and local firearms laws in their 

jurisdiction. This knowledge can be invaluable. For example, 

in a state with less restrictive firearms laws, it is not 

uncommon to spot a citizen carrying a concealed weapon. 

However, in a state that prohibits citizens from carrying 

concealed weapons, this observation of a weapon would create 

a reasonable suspicion to justify an investigative stop and a 

frisk for weapons.

7.2 Title 18 U.S.C. § 922(d) - Prohibited Persons 

7.2.1 Definition of “Firearm”

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

or may be readily converted to expel a projectile by explosion, 

including the frames or receivers of such weapons. The 

definition of “firearm” also includes silencers and destructive 

devices, such as bombs. However, the definition of “firearm” 

does not include “antique firearms” (those manufactured prior 

to 1899), air-powered weapons like BB and pellet guns, black 

powder weapons, and authentic replicas of antique firearms.

7.2.2 Prohibited Persons

Federal law prohibits certain persons from possessing a 

firearm or ammunition. Since the Constitution does not 

provide Congress with an express enumerated power 

pertaining to the regulation of firearms, Congress has to rely 

upon some other enumerated power. The constitutional anchor 

upon which the firearms statutes are based is the commerce 

clause. At trial, the government must prove a connection 
157

(“nexus”) between each firearm offense and interstate 

commerce.

Federal law prohibits the following persons from knowingly 

possessing firearms or ammunition that have a nexus to 

interstate commerce:

a. Convicted Felons – 18 U.S.C. § 922(d)(1)

A “convicted felon” is anyone “who has been convicted in a 

state, federal, or military court of a crime punishable by 

imprisonment for a term exceeding one year.” The Supreme 

Court determined that convictions by foreign courts do not bar 

an individual from possessing a firearm even if the conviction 

was for a felony-level offense.

This is called the “convicted felon” prohibition. There are a few 

felony-level convictions that do not bar an individual from 

possessing a firearm. These exceptions include: (1) individuals 

convicted of “a federal or state offense pertaining to antitrust 

violations, unfair trade practices, restraints on trade or similar 

offenses relating to the regulation of business practices;” or (2) 

“any State offense classified by the laws of the State as a 

misdemeanor and punishable by a term of imprisonment of 

two years or less.” 18 U.S.C. § 921(a)(20)(A). Furthermore, 

pardons are exceptions to the convicted felon firearms 

possession rule, unless the pardon expressly states that 

weapon possession is still prohibited.

b. Fugitives From Justice – 18 U.S.C § 922 (d)(2)

The term “fugitive from justice” means “any person who has 

fled from any State to avoid prosecution for a crime or to avoid 

giving testimony in any criminal proceeding.” 18 U.S.C § 

921(a)(15).
158

c. Drug Users/Addicts – 18 U.S.C. § 922(d)(3)

This includes both unlawful users of drugs and those addicted 

to a controlled substance.

d. Persons Adjudicated Mentally Defective – 18 

U.S.C. § 922(d)(4)

Any person who has been adjudicated by a court as mentally 

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

institution cannot possess a firearm.

Note that the person must have been “adjudicated” mentally 

defective or “committed” to a mental institution. Adjudicated 

means a court has made the decision. Voluntary treatment or 

counseling does not qualify a person for this prohibition.

e. Illegal Aliens – 18 U.S.C. § 922 (d)(5)

f. Persons With Dishonorable Discharges – 18 

U.S.C. § 922 (d)(6)

Any person who was discharged from the Armed Forces under 

dishonorable conditions.

g. Renounced U.S. Citizenship – 18 U.S.C. § 922 

(d)(7)

Anyone person who has renounced their United States 

citizenship

h. Domestic Relations Restraining Orders – 18 

U.S.C. § 922(d)(8)

Any person who is subject to a court order restraining them 

from harassing, stalking, or threatening an intimate partner, 

or child of such intimate partner.
159

i. Misdemeanor Crimes of Domestic Violence – 18 

U.S.C. § 922 (d)(9)

Any person who has been convicted of a misdemeanor crime of 

domestic violence.

This means a conviction for a crime that is a misdemeanor 

under federal, state, or tribal law and that has, as an element, 

the use or attempted use of physical force, or the threatened 

use of a deadly weapon, committed by a current or former 

spouse, parent, or guardian of the victim, by a person with 

whom the victim shares a child in common, by a person who is 

cohabiting with or has cohabited with the victim as a spouse, 

parent, or guardian, or by a person similarly situated to a 

spouse, parent, or guardian of the victim. 18 U.S.C. § 

921(a)(33)(A).

For a domestic violence conviction to disqualify a person from 

the lawful possession of a firearm, it must meet two 

qualifications: the defendant (1) must have been represented 

by counsel, or knowingly and intelligently waived the right to 

counsel; and (2) if right to trial by jury existed, the defendant 

either waived that right or had been convicted by jury. 18 

U.S.C. § 921 (a)(33)(B)(i).

7.2.3 Pardon or Expungement

A person who receives a complete pardon, restoration of civil 

rights, or expungement of a felony or misdemeanor crime of 

domestic violence conviction is no longer considered convicted, 

and is, therefore, no longer disqualified from possessing a 

firearm. However, possessing firearms remains a crime under 

federal law if the pardon or expungement states that the 

person may not possess firearms. 18 U.S.C. § 921 (a)(20)(B)

and 18 U.S.C. § 921 (a)(33)(B)(ii).
160

7.3 Enhanced Mandatory Penalties 

7.3.1 Introduction

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

penalties for any person who possesses, brandishes, or 

discharges a firearm during the commission of a federal crime 

of violence or federal drug trafficking crime. The term 

“brandish” means to display the weapon or make possession of 

the weapon known. Discharging a firearm includes an 

accidental discharge. Any person subject to these enhanced 

penalties is not 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.

7.3.2 Definitions - 18 U.S.C. § 924(c)(3)

a. Federal Crime of Violence

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

that is a felony and has, as an element, the use, attempted use, 

or threatened use of physical force against the person or 

property of another.

b. Federal Drug Trafficking Crime

The term “federal drug trafficking crime” means “any felony 

punishable under the Controlled Substances Act (21 U.S.C. § 

801 et seq.), the Controlled Substances Import and Export Act 

(21 U.S.C. § 951 et seq.), or the Maritime Drug Law 

Enforcement Act (46 U.S.C. App. 1901 et seq.).” This is a very 

broad definition.
161

7.3.3 Enhanced Mandatory Penalties

a. Firearm Possessed

If the firearm is possessed during the commission of a crime of 

violence or a drug trafficking crime, the mandatory penalty is 

imprisonment for not less than five years.

b. Firearm Brandished

If the firearm is brandished during the commission of a crime 

of violence or drug trafficking crime, the mandatory penalty is 

imprisonment for not less than seven years.

c. Firearm Discharged

If the firearm is discharged (even accidentally) during the 

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

mandatory penalty is imprisonment for not less than 10 years.

7.4 Possession of Firearms in Federal Facilities 

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

possess or cause to be presented a firearm or “other dangerous 

weapon” in a “federal facility.” The term “federal facility” is 

defined broadly to include any building (or parts of buildings) 

owned or leased by the federal government where federal 

employees are regularly present for performing their duties.

The term “dangerous weapon” is also broadly defined. It 

includes any weapon or substance capable of causing death or 

serious bodily injury. A knife with a blade length of two and 

one half (2 1⁄2) inches or longer is a dangerous weapon.

State, local and federal law enforcement officers are exempt 

from this law while performing their official duties. However, 
162

this does not give officers an automatic right to carry weapons 

into federal facilities. For example, most federal courts require 

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

7.5 Weapons Requiring Registration 

7.5.1 Introduction

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

the Bureau of Alcohol, Tobacco, Firearms and Explosives 

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

prohibits possession of such unregistered weapons. These 

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

machine guns, silencers/mufflers, and destructive devices.

7.5.2 Procedure

If an officer encounters or reasonably suspects that a weapon 

must be registered, the following procedures are 

recommended:

a. Is Registration Required

Determine whether the weapon is required to be registered by 

examining the weapon or measuring the weapon.

b. Is the Weapon Registered

If registration is required, determine if the weapon is properly 

registered to the current possessor of the weapon.

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

a. Short-Barrel Shotgun

Any short-barrel shotgun or weapon made from a shotgun 

must be registered if the barrel of the weapon is less than 18 
163

inches in length and/or the overall length of the weapon is less 

than 26 inches. To check the weapon for compliance of overall 

length requirements, measure the weapon from the tip of the 

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

weapon.

b. Short-Barrel Rifle

Any short-barrel rifle or weapon made from a rifle must be 

registered if the barrel of the weapon is less than 16 inches in 

length and/or the overall length of the weapon is less than 26 

inches. Again, to check the weapon for compliance of overall 

length requirements, measure the weapon from the tip of the 

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

weapon.

c. Machine Guns

All machine guns must be registered. A machine gun is any 

weapon which shoots, is designed to shoot, or can be readily 

restored to shoot, automatically more than one shot, without 

manual reloading, by a single pull of the trigger. This term 

includes the frame or receiver of any such weapon, any 

combination of parts from which a machine gun can be 

assembled, and parts which convert an ordinary firearm into 

a machine gun.

d. Silencer/Suppressor

Any device for silencing, muffling, or diminishing the 

explosion noise of a firearm must be registered.

e. Destructive Devices

All destructive devices must be registered. The term 

destructive device means any explosive, incendiary, or poison 

gas, bomb, grenade, rocket (with more than 4 oz. of propellant), 
164

missile (with more than .25 oz. of explosive), mine, or similar 

device. The term also includes any type of weapon (regardless 

of name) which will, or which may be readily converted to, 

expel a projectile by the action of an explosive or other 

propellant, the barrel or barrels of which have a bore of more 

than one half (1⁄2) inch in diameter, except a shotgun or 

shotgun shell which is generally recognized as particularly 

suitable for sporting purposes. Common destructive devices 

include rocket launchers, mortars, land mines, claymore mines 

and hand grenades.

7.6 Tracing a Firearm through the ATF 

7.6.1 Introduction

The ATF National Tracing Center handles about 350,000 

firearm trace requests annually. Tracing a firearm may assist 

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

tracing firearms is to link criminally used weapons to a specific 

person. Additionally, the trace may assist in identifying: (1) 

stolen property; (2) associates of suspects; and (3) sources and 

suppliers of firearms for criminal suspects. Finally, tracing 

firearms helps to prove the connection (“nexus”) between the 

firearm and interstate commerce.

7.6.2 Information Required to Trace a Firearm

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

provided:

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

“Taurus,” or “Sturm Ruger.”

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

“Model 26.”

c. Serial Number: For example, “33419.”
165

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

7.6.3 Information Gained from Successful Trace

Tracing the weapon should reveal the following information: 

the manufacturer, the exporter/importer if the weapon is 

foreign-made, the wholesale distributor, the retail gun dealer, 

and the first lawful retail purchaser from the dealer. A 

weapons trace will not reveal transfers of weapons between 

private individuals. There is no national database for 

recording weapon transfers between individuals.
166
167

Chapter 8 - 

 

Criminal Law – Federal Drug Offenses 

8.1 Introduction and Elements ...................................... 167

8.2 Controlled Substances ............................................. 168

8.2.1 Defined .......................................................................168

8.2.2 Possession – 21 U.S.C. § 844.....................................169

8.2.3 Distribution – 21 U.S.C. § 841 ..................................171

8.2.4 Penalties and Charging .............................................171

_______________________________________________________

8.1 Introduction and Elements 

Due to pervasive substance abuse in our society, it is 

imperative that law enforcement officers have a working 

knowledge of common controlled substance offenses. At 

various times during their careers, law enforcement officers, 

regardless of agency assignment, are likely to encounter a 

variety of controlled substance offenses.

The elements of these crimes include:

• The defendant knowingly or intentionally;

• Possessed (§ 844) or Distributed (§ 841)

• A controlled substance;

• Without authority.
168

8.2 Controlled Substances 

Knowing or intentional possession, or knowing or intentional 

possession with intent to distribute (transfer), a controlled 

substance are criminal offenses. These substances would be 

legal to possess and distribute, but for the statutes which 

“control” them. Congress has not included alcohol and tobacco 

on the schedule of controlled substances. Be mindful, that 

there are circumstances where possession of controlled 

substances can be lawful. Examples of those who may lawfully 

possess a controlled substance include patients who have a 

valid prescription to possess and consume a drug, officers who 

possess drugs from a lawful search incident to arrest, a 

physician who administers the drug for medical purposes, or a 

researcher who possesses the drug for testing.

8.2.1 Defined

A controlled substance is defined by federal statute as a “drug 

or other substance...” identified in schedules I, II, III, IV, and 

V of 21 U.S.C. § 812. Schedule I substances are considered the 

most dangerous, as they have little or no currently accepted 

medical use and have a high potential for abuse. The 

remaining schedules list drugs based on their accepted 

medical use and their potential for abuse. The schedules list 

drugs by their scientific names. They also list finished drugs 

like cocaine, and the raw material, such as coca leaves, from 

which it is created. Controlled substance analogues are 

substances which have substantially similar chemical 

structures to controlled substances. Congress criminalized the 

possession and distribution of analogues, as well as the 

immediate precursor chemicals necessary to create the drugs. 

When charging these offenses, the controlled substance must 

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

charging document, and must be proven beyond a reasonable 

doubt.
169

8.2.2 Possession – 21 U.S.C. § 844

Pursuant to Title 21 U.S.C. § 844, it is “unlawful for any person 

knowingly or intentionally to possess a controlled substance...”

One of the elements the government must prove in a wrongful 

possession case is that the defendant unlawfully possessed a 

controlled substance. Many individuals lawfully possess 

controlled substances. For example, a patient lawfully 

possesses a controlled substance when he or she has a valid 

prescription from a medical practitioner for use in treating an 

ailment. In addition, if a law enforcement officer takes 

possession of controlled substance during a search incident to 

arrest, the possession of the controlled substance would be 

lawful. If, instead of turning the controlled substance in as 

evidence, the officer keeps it and takes it home for personal 

use, the officer would unlawfully possess the controlled 

substance.

Knowing or intentional possession of a controlled substance is 

also an element of the offense. Knowingly means that a person 

realizes what he is doing and is aware of the nature of the 

conduct and does not act through ignorance, mistake, or 

accident. A prosecutor can use a person’s words, acts, or 

omissions to determine if they acted “knowingly.” Mere 

presence at the scene of a controlled substance offense is not, 

by itself, sufficient evidence to convict a defendant. However, 

if a defendant suspected another party was committing a 

crime, and the defendant shut his eyes for fear of what he may 

learn, a jury may conclude the defendant had sufficient 

knowledge to establish criminal culpability. It is the law 

enforcement officer’s responsibility to develop facts to prove all 

the elements of the offense.

Possession is the ability to control the substance. Knowing or 

intentional possession means that the person has knowledge 

of the nature of the possessed substance. The government is 
170

not required to prove the defendant knew the exact nature of 

the substance they possessed. The government is required to 

merely prove the defendant knew the substance they 

possessed was a controlled substance. Similarly, if the person 

believes the substance they possess is cocaine when in fact it 

is heroin, the government need only prove the defendant 

possessed a controlled substance, not a particular controlled 

substance. 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. A person actually possesses a controlled 

substance when they physically control that substance (in 

their hand, for example). Constructive possession occurs when 

the person is not in actual physical contact with the substance, 

but has the power and intention to exercise direction and 

control over it. If the controlled substance is in the trunk of 

their car, on their dresser, or in their desk drawer, they have 

constructive possession. Joint possession occurs when more 

than one person possesses the same controlled substance. For 

example, if two people knowingly transport cocaine, a 

controlled substance, in the trunk of a car, they jointly possess 

the cocaine.

Any amount of a controlled substance can support a conviction 

for a properly charged offense. A trace amount of cocaine, a 

marijuana seed, residue on a roach clip, or a dried solution on 

a syringe is all that the government needs to support a 

conviction when the offense is properly charged. The statutes 

used to charge the defendant, as wellas the amount and type 

of the controlled substance the defendant possessed will have 

a direct impact on the sentence, but not the conviction itself.
171

8.2.3 Distribution – 21 U.S.C. § 841

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

knowingly or intentionally: “(1) manufacture, distribute, or 

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

dispense, a controlled substance...” Possession with intent to 

manufacture, distribute, or dispense is usually proved through 

circumstantial evidence. Prosecutors can use words, acts, 

omissions, packaging materials, method of packaging, scales, 

quantity, value, purity, and the presence of cash, distribution 

paraphernalia, and transportation arrangements to 

circumstantially prove possession with intent to distribute. 

The government need not prove any commercial transaction 

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

to support the knowing or intentional distribution (transfer) or 

possession with intent to distribute (transfer) the controlled 

substance. It is the law enforcement officer’s responsibility to 

develop facts to prove elements of these offenses.

8.2.4 Penalties and Charging

Penalties are dependent upon the amount and type of drug 

(which schedule is affected) and how the offense is charged. 

Distributing controlled substances within 1,000 feet of a school 

or playground, or at a public transportation highway rest stop 

or truck stop, or by using or employing a minor are chargeable 

offenses with enhanced punishments. Attempts, conspiracies 

(no overt act is required for a drug conspiracy – only the 

agreement is required), and importation are other examples of 

ways in which controlled substances can be charged and 

penalized. Furthermore, possession of drug making 

equipment, using a communication facility (phone/cell phone) 

in facilitating a controlled substance offense, endangering 

human life while manufacturing a controlled substance, 

distributing controlled substances to persons under 21 years 

of age or to anyone that is pregnant, or employing persons 

under the age 21 in drug operations are other offenses that 
172

may be charged. Generally, the government charges 

possession of “user amounts” as a misdemeanor and forfeitures 

and civil penalties can be imposed.
173

Chapter 9 - 

 

Criminal Law – Conspiracy and Parties 

9.1 Introduction – Conspiracy ....................................... 173

9.2 The Statute: Title 18 U.S.C. § 371 ........................... 174

9.2.1 The Elements .............................................................175

9.3 The Law of Conspiracy ............................................ 180

9.3.1 The Doctrine of Merger/Double Jeopardy ................181

9.3.2 Pinkerton Theory of Vicarious Liability...................181

9.3.3 Late Joiners to a Conspiracy.....................................182

9.3.4 Withdrawal from a Conspiracy .................................182

9.3.5 Statute of Limitations - 18 U.S.C. § 3282.................183

9.3.6 Venue..........................................................................184

9.4 Introduction – Parties to Criminal Offenses ........... 184

9.4.1 Aiding and Abetting - 18 U.S.C. § 2(a) .....................185

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

.......................................................................186

9.4.3 Accessory After the Fact - 18 U.S.C. § 3...................186

9.4.4 Misprision of Felony - 18 U.S.C. § 4 .........................187

_______________________________________________________

9.1 Introduction – Conspiracy 

The crime of conspiracy was created because of the inherent 

dangers that are created when two or more individuals join 

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

commit a crime strengthens the criminal scheme and enhances 

the potential success of the scheme. Furthermore, once an 

individual joins with another or others to violate the law, those 

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

individual makes a solitary decision to violate the law, that 

individual is more likely to reassess his or her decision or 
174

simply change their mind. Often their conscience gets the best 

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

are two or more individuals involved, they reinforce each 

other, thus there is generally little likelihood that they will 

change their mind or reassess their decision. Once a 

conspiracy is formed, there is the danger it will spin out of 

control, as members of the conspiracy recruit others to join 

their enterprise, making it more dangerous and difficult to 

immobilize. For these reasons, the identification and targeting 

of multi-defendant criminal enterprises are essential to 

successful law enforcement.

Conspiracy statutes can be used to great advantage by 

criminal investigators. Some of the advantages include the 

ability to investigate beyond the first layer of the criminal 

enterprise, while allowing a jury to see the big picture behind 

a given criminal act. It also enables investigators to be 

proactive and even prevent substantive offenses, while still 

being able to charge felony criminal conduct. Disadvantages to 

conspiracy charges are highlighted by time- consuming 

investigations and difficulties dealing with witnesses, who are 

often co- conspirators. In spite of these disadvantages, the 

conspiracy investigation is one of the most effective weapons 

in the law enforcement officer’s arsenal. It is designed to 

immobilize and eliminate those who come together to 

strengthen a criminal enterprise. This chapter provides a basic 

working knowledge of conspiracy law.

9.2 The Statute: Title 18 U.S.C. § 371 

There are a number of federal statutes that criminalize certain 

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

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

Substance Conspiracy). This course is concerned only with the 

general federal conspiracy statute, 18 U.S.C. § 371, which 

states:
175

If two or more persons conspire either to commit 

any offense against the United States, or to 

defraud the United States, or any agency thereof 

in any manner or for any purpose, and one or more 

of such persons do any act to effect the object of the 

conspiracy, each shall be fined under this title or 

imprisoned not more than five years or both.

If, however, the offense, the commission of which 

is the object of the conspiracy, is a misdemeanor 

only, the punishment for such conspiracy shall not 

exceed the maximum punishment provided for 

such misdemeanor.

The plain language of the statute prohibits two distinct types 

of conspiracies. First, it prohibits any conspiracy to violate a 

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

prohibits any conspiracy to defraud the United States or any 

agency of the United States, including conspiracies formed for 

the purpose of impairing, obstructing, or defeating the lawful 

functions of any department of the United States government, 

such as the Internal Revenue Service.

The statute provides a maximum punishment of not more than 

incarceration for five years, as well as a fine up to $250,000.00, 

but only if the intended or committed substantive offense is a 

felony. If the offense committed or intended is a misdemeanor, 

the maximum punishment for the conspiracy charge cannot 

exceed the maximum possible penalty for the misdemeanor.

9.2.1 The Elements

There are five essential elements the government must prove 

beyond a reasonable doubt to establish a violation of § 371. A 

conspiracy exists when:

• Two or more persons;
176

• Intentionally;

• Agree;

• To violate federal law or defraud the United States;

• And commit an overt act in furtherance of the 

agreement.

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

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

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

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

steps to accomplish their ultimate goal.

a. Two or More Persons

A conspiracy requires the participation of “two or more 

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

necessary criminal intent to agree to the objects of the 

conspiracy. One person cannot conspire with himself or an 

undercover law enforcement officer or a cooperating 

informant. Because a government agent or a cooperating 

informant does not truly intend to commit the ultimate crime 

of the conspiracy, they cannot be counted as a conspirator. 

Likewise, individuals who do not have the mental capacity to 

form the criminal intent to conspire may not be one of the 

required two or more persons in a conspiracy. Minors and 

mentally ill persons could fall into this category as well.

Co-conspirators need not meet and they need not know each 

other’s identities, but they must be aware of, or must 

reasonably foresee, each other’s existence and roles. For 

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

a tractor-trailer from a truck stop may not know the person 
177

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

easily taken, nor would he necessarily know the person who 

was purchasing the stolen goods. Furthermore, as long as 

there are at least two members to the conspiracy involved at 

all times, the conspiracy continues, even if the members 

change and the original members have withdrawn and are no 

longer involved in the conspiracy.

b. Knowledge and Intent

The government must prove that the defendant had 

knowledge of the conspiracy and intended to participate in it.

1. Knowledge

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

conspiracy’s existence and its overall plan or purpose. 

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

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

other person is involved in the conspiracy (so that an 

agreement is possible), there is no requirement that the 

defendant know the identity, number, or role of all coconspirators. Secrecy and concealment are often features of a 

successful conspiracy. Accordingly, the law allows for the 

conviction of individuals without requiring that they have 

knowledge of all of the details of the conspiracy or of all of the 

members participating in it.

2. Intent

The defendant must intend to participate in the conspiracy. 

The government must present evidence that the defendant 

joined the conspiracy voluntarily, by agreeing to play some 

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

defendant was aware of the plan or that the defendant 

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

defendant’s intent to participate in the conspiracy must be 
178

proven. A defendant’s intent may be proven through 

circumstantial evidence, such as the defendant’s relationship 

with other members of the conspiracy, the length of the 

association between the members, the defendant’s attitude 

and conduct, and the nature of the conspiracy. Acts committed 

by the defendant that furthered the objective of the conspiracy 

are strong circumstantial evidence that the defendant was a 

knowing and willing participant in the conspiracy.

c. The Agreement

The essence of any conspiracy is the agreement. With 

conspiracy, the mere agreement to violate the law or defraud 

the United States becomes criminal once an overt act in 

furtherance of that agreement is committed by a coconspirator. Seldom, if ever, is there proof of a formal 

agreement, and the agreement does not have to be put into 

words, either oral or written. The agreement is often 

established through circumstantial evidence that a mutual 

understanding was formed. Association with members of a 

conspiracy helps to establish a defendant’s willing 

participation. However, mere presence at the scene is not by 

itself enough to establish an agreement. An individual can be 

present with others that are known to be co-conspirators 

without intending to join or further the objects of the 

conspiracy.

An individual can also do something to help the conspiracy 

without actually joining. For example, an individual may rent 

an apartment to members of a conspiracy. The conspirators 

use the apartment to set up their “bookmaking” operation. The 

apartment owner has aided the conspiracy. However, absent a 

showing that he had a stake in the venture (doubled the rent) 

or knew of the conspiracy and intended to help it by providing

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

presence or helping without joining in the agreement are 

common defenses to conspiracy charges. Efforts must be made 
179

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

be shown directly by co-conspirators testifying about the 

defendant’s role in the organization or indirectly by 

documenting a series of acts or events that demonstrate that 

the defendant acted in concert with and therefore must have 

been in agreement with other members of the conspiracy.

d. Unlawful or Fraudulent Means or Objective

To successfully prosecute under § 371, either the objective of 

the conspiracy or the means to accomplish the objective must 

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

defrauding the United States. If neither the objective nor the 

means to accomplish the objective violate federal law or 

defraud the United States, a prosecution under § 371 is not 

possible. Note that the objective of the conspiracy does not 

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

contemplated objective would defraud, impede, impair, defeat, 

or obstruct the proper functions of the United States 

Government. This could be accomplished through a scheme 

such as “bid-rigging” or through an agreement to obstruct the 

regulatory functions of a government agency.

It is not a defense that the objective of a conspiracy is factually 

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

conspiracy is to kill an individual who, unknown to the 

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

the conspirators to carry out their plan. However, the 

conspiracy charge is complete the moment the first overt act 

in furtherance of the agreement is committed by a coconspirator.

e. The Overt Act

Once an agreement has been made, one of the conspirators 

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

complete the crime of conspiracy. The overt act demonstrates 
180

that the conspirators have moved from a “thought” crime to 

one of action. Instead of simply talking about the crime, the 

conspirators have actually taken a step towards making it a 

reality. An overt act shows that the agreement is not dormant, 

but is actually being pursued by the conspirators.

Only one overt act must be committed to complete the offense 

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

advancing or helping the conspiracy. For example, if two 

individuals agree to rob a bank and then one of them 

purchases ski masks to use in a robbery and the other then 

steals guns to use in the robbery, each co- conspirator has 

committed an overt act in furtherance of the agreement. Either 

act would be sufficient to complete the offense of conspiracy to 

rob the bank. A single overt act is sufficient to complete the 

conspiracy for all members to the agreement, including those 

who join the conspiracy after it has begun. The overt act must 

be committed by a member of the conspiracy and must occur 

after the agreement. The government may not rely on acts 

committed before the agreement to complete the conspiracy.

The overt act need not be a criminal act. For example, the overt 

act may be preparatory in nature, such as buying a car or mask 

to use in a bank robbery. If the substantive offense (the bank 

robbery) is actually committed, that offense may be used as the 

overt act necessary to complete the conspiracy. Thus, if two 

persons agree to rob a bank and do so without any intervening 

overt acts, the bank robbery would be the overt act necessary 

to complete the conspiracy.

9.3 The Law of Conspiracy 

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

there is significant law that officers should know when 

undertaking a conspiracy investigation. The following sections 

provide additional legal principles to guide their 

investigations.
181

9.3.1 The Doctrine of Merger/Double Jeopardy

A conspiracy charge is a separate and distinct offense from the 

crime being planned and does not “merge” with the 

substantive offense, should it ultimately be committed. The 

Doctrine of Merger holds that inchoate offenses (offenses 

committed that lead to another crime) such as solicitation and 

attempts to commit crimes “merge” into the substantive 

offense if that offense is committed. Unlike those inchoate 

offenses, conspiracy does not “merge” into the substantive 

offense. Conspiracy to commit a substantive offense has 

different elements than the substantive offense and will 

survive a double jeopardy challenge when both are charged 

using the exact same evidence. Thus, if there is a conspiracy to 

rob a bank and the bank is ultimately robbed, the offense of 

conspiracy to rob the bank and bank robbery can both be 

charged.

9.3.2 Pinkerton Theory of Vicarious Liability

Conspirators are criminally responsible for the reasonably 

foreseeable acts of any co-conspirator that are committed while 

they are members of the conspiracy and that are in 

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

Theory of “vicarious liability.” For example, if the plan was to 

smuggle counterfeit computer software into the United States, 

bribing a Customs and Border Protection Officer would be a 

reasonably foreseeable act. In such a case, each conspirator 

would be liable for the substantive act of bribery, regardless of 

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

reasonably foreseeable consequence of the overall plan, a coconspirator could not be held liable for that act unless he or 

she was the individual who actually committed it. One benefit 

of this rule is that all foreseeable acts of the conspiracy can be 

introduced at trial even though those on trial may not have 

participated in the acts. The lesson regarding conspiracy that 
182

most criminals learn the hard way is that they must choose 

their co-conspirators wisely, because the reasonably 

foreseeable act of a co- conspirator is the act of all, when the 

act is committed in furtherance of the agreement.

9.3.3 Late Joiners to a Conspiracy

The law recognizes that an individual may join a conspiracy 

after it has begun, but before it has been terminated. Such an 

individual is referred to as a “late joiner” to the conspiracy. 

“Late joiners” do not have to commit an overt act, but only have 

to join an ongoing conspiracy. “Late joiners” take the 

conspiracy as they find it. Late joiners are not only criminally 

liable for the conspiracy they joined, but also for any 

reasonably foreseeable acts committed by any co- conspirator 

while the “late joiner” is a member of the conspiracy. “Late 

joiners” are not criminally responsible for the criminal offenses 

of co- conspirators committed prior to their joining the 

conspiracy. Nonetheless, the prior acts of the co-conspirators 

are admissible at the trial of the “late joiner,” in order to show 

the existence of the conspiracy.

9.3.4 Withdrawal from a Conspiracy

Just as the law recognizes that individuals may join a 

conspiracy after it begins, the law also recognizes that 

conspirators may withdraw from the conspiracy prior to its 

termination. Withdrawal from a conspiracy requires more 

than simply no longer participating. A valid withdrawal from 

a conspiracy has two basic requirements. First, the conspirator 

must perform some affirmative act inconsistent with the goals 

of the conspiracy. Unless a conspirator produces affirmative 

evidence of withdrawal, his or her participation is presumed to 

continue. Second, the affirmative act must be reasonably 

calculated to be communicated to at least one other known 

conspirator or law enforcement personnel. Withdrawal is an 
183

affirmative defense, which means the burden is on the 

defendant to prove that he has withdrawn.

If a conspirator validly withdraws from a conspiracy, the 

statute of limitations (explained below) on the conspiracy 

charge for that person will begin to run the date of the 

withdrawal. Further, the withdrawal of a conspirator does not 

generally change the status of the remaining members. The 

valid withdrawal of a single conspirator from a two-person 

conspiracy however, will result in the termination of the 

conspiracy, because the requisite “two or more persons” are no 

longer present. Once a valid withdrawal occurs, the 

withdrawing defendant will escape liability for any 

subsequent criminal acts of the remaining conspirators, but 

remains liable for conspiracy and for any criminal acts 

committed while a member of the conspiracy. Only by 

withdrawing from the agreement before the commission of the 

overt act will the individual escape liability for a conspiracy 

charge.

9.3.5 Statute of Limitations - 18 U.S.C. § 3282

The statute of limitations for conspiracy is five years and can 

run from various dates depending on the facts of each case. 

The statute of limitations begins to run from the date the 

conspiracy is completed, terminated, or abandoned. The 

statute of limitations can also run from the date the last overt 

act was committed in furtherance of the conspiracy (e.g., 

dividing the money from the bank robbery). The conspiracy 

itself may, depending on the nature of the agreement, continue 

past achieving the objective, in order to conceal the crime or to 

destroy or suppress evidence. In such cases, the statute of 

limitations would be extended and would not start to run until 

such time as the last overt act (i.e., the last act of concealment) 

occurs. For substantive offenses committed during the 

timeframe of the conspiracy, the statute of limitations begins 

to run from the date the substantive offense was committed.
184

9.3.6 Venue

The Sixth Amendment requires that prosecution occur “in the 

State and District wherein the crime shall have been 

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

agreement and an overt act in furtherance of that agreement, 

venue for a conspiracy charge exists in the district where the 

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

overt act in furtherance of the agreement was committed. 

Since the act of one conspirator committed in furtherance of 

the conspiracy is an act of all conspirators, an act in a district 

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

even where the others were never physically present in the 

district.

If a substantive offense is committed, venue for the 

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

a practical matter, cases are charged in the district where 

venue for both the conspiracy and the substantive offense 

overlap.

9.4 Introduction – Parties to Criminal Offenses 

When a crime is committed, the individual who actually 

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

offense. However, there are often individuals who assist or 

help the principal to commit the offense. Some of these 

individuals provide assistance before the crime is committed, 

while others provide some manner of assistance after the 

crime has been committed. Still others may have knowledge 

that a federal crime was committed, yet take affirmative steps 

to conceal this knowledge from federal officers. All of these 

persons are known as “parties” to the offense.
185

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

Any person who knowingly aids, abets, counsels, commands, 

induces or procures the commission of an offense may be found 

guilty of that offense. For example, a charge would read: Theft 

of Government Property, Aiding and Abetting; in violation of 

18 U.S.C.

§§ 641 and 2. That person must knowingly associate with the 

criminal activity, participate in the activity, and try to make it 

succeed.

In other words, the defendant must actually do something to 

assist the commission of the crime. The affirmative act of 

association must occur either before or during the commission 

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

a completed crime. If the affirmative act occurs after the 

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

and abetting,” but may be liable as an “accessory after the fact” 

(discussed below).

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

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

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

presence of the principal, does not, by itself, create criminal 

liability as an aider and abettor. The government must show 

that the association with the principal was for the purpose of 

assisting in committing the crime. “Mere association” with the 

principal is a common defense to an aiding and abetting 

charge. In addition to an affirmative act of association, the 

defendant must also know that he or she is assisting in the 

commission of a crime. Deliberate avoidance of knowledge 

(otherwise known as “willful blindness”) may suffice. 

Deliberate avoidance occurs when a defendant claims a lack of 

guilty knowledge, but the evidence shows that he or she 

instead chose to intentionally avoid gaining knowledge about 

the circumstances surrounding their assistance in order to 

avoid criminal responsibility.
186

Finally, a crime must actually be committed in order to charge 

an individual as an aider and abettor. A defendant may be 

convicted of aiding and abetting even though the actual 

principal of the crime is never convicted or even identified. The 

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

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

If a person willfully causes another to commit a federal crime, 

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

other person to commit.

It is not necessary that the defendant know the individual who 

actually committed the offense, or that the defendant is 

present when the crime is committed. There is also no 

requirement that the individual who actually committed the 

offense be convicted in order to convict the individual who 

caused the crime.

9.4.3 Accessory After the Fact - 18 U.S.C. § 3

An accessory after the fact is one who, with knowledge that an 

offense was committed, receives, relieves, comforts or assists 

the offender with the intent to hinder or prevent the offender’s 

apprehension, trial or punishment. The offense that was 

committed can be a felony or a misdemeanor. Silence alone 

does not constitute the offense of accessory after the fact. 

However, providing false or misleading statements to law 

enforcement officers in an effort to assist a principal in evading 

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

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

whereabouts of a sibling who is involved in a theft of 

government property in order to protect the sibling from being 

arrested and punished for the theft, the family member is an 

accessory after the fact to the theft. As with aiding and 
187

abetting, the conviction of the principal is not necessary to 

convict a defendant as an accessory after the fact.

There is a distinct difference in punishment between aiding 

and abetting and accessory after the fact offenses. An aider 

and abettor is punished for the offense he aids or abets. 

However, when an individual is convicted for being an 

accessory after the fact, the maximum possible punishment is 

one-half the maximum punishment possible for the principal 

of the offense (not the actual sentence received), up to a total 

of 15 years in those cases where the principal could receive 

either life imprisonment or the death penalty.

9.4.4 Misprision of Felony - 18 U.S.C. § 4

This statute is directed at those individuals who have 

knowledge of a felony offense and take affirmative steps to 

conceal the crime and fail to disclose their knowledge to 

criminal investigators. Misprision of felony is concealing a 

felony with no requirement that the party intend to help the 

principal. The penalty for misprision of felony is up to 3 years 

in prison and a fine up to $250,000.00.

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

government must prove a federal felony was committed, the 

defendant had knowledge of the felony that was committed, 

the defendant performed either an affirmative act of 

concealment or an act that concealed the true nature of the 

crime, and defendant failed to disclose knowledge of the crime 

as soon as possible.

As with the crime of accessory after the fact, an individual’s 

silence alone is not a crime. A simple failure to report a crime 

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

guilty of misprision of felony. However, where an individual 

lies to or misleads criminal investigators, this element may be 

met. A defendant accused of being an accessory after the fact 

must intentionally assist the principal of the crime, while one 
188

accused of misprision of felony need only commit an act of 

concealment without necessarily intending to assist the 

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

defendant to disclose his knowledge as soon as possible, while 

misprision of felony does.

The offenses of accessory after the fact and misprision of felony 

are closely related and often there will be sufficient evidence 

to charge either or both. Officers should collect all the facts and 

let the Assistant United States Attorney make the charging 

decision.
189

Chapter 10 - 

 

Criminal Law – The Entrapment Defense 

10.1 Introduction ............................................................. 189

10.2 Overview: How the Entrapment Defense Works..... 190

10.3 Analysis of the Entrapment Defense ....................... 190

10.3.1 Government Inducement .......................................190

10.3.2 Predisposition .........................................................192

10.3.3 Examples of Predisposition....................................193

10.3.4 Examples of No Predisposition ..............................193

10.4 Conclusion ................................................................ 194

_______________________________________________________

10.1 Introduction 

Entrapment is the act of government officers or their agents 

(e.g., informants) inducing a person to commit a crime not 

contemplated by that person, for the purpose of prosecuting 

that individual. It is the conception and planning of an offense 

by officers or their agents and their procurement of its 

commission by one who would not have perpetrated it except 

for the trickery, persuasion or fraud of the officer. Government 

officers may not originate a criminal design, implant in an 

innocent person’s mind the disposition to commit the criminal 

act, and then induce commission of the crime so that the 

government may prosecute.

Entrapment occurs only when the criminal conduct was the 

product of the activity of government officials. This means that 

entrapment cannot result from the inducements of a purely 

private citizen, but must be the product of government conduct 

initiated by its officers or their agents.
190

10.2 Overview: How the Entrapment Defense Works 

Entrapment is an affirmative defense. To substantiate the 

defense, the defendant must establish sufficient facts from 

which a reasonable jury could find the government induced an 

innocent person to commit a criminal offense. The defendant 

typically does this 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’s case-in- chief if it presents 

one. The question of entrapment is one for the jury to decide, 

unless the defendant waives his right to a jury trial and the 

government tries the case before only a 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 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 the 

government establishes the defendant’s predisposition, the 

entrapment defense fails.

10.3 Analysis of the Entrapment Defense 

A valid entrapment defense consists of two components: (1) 

government inducement of the defendant to commit the crime; 

and (2) lack of predisposition by the defendant to commit the 

crime.

10.3.1 Government Inducement

For the entrapment defense to work, the defendant must first 

establish the government induced the criminal activity. 

Inducement by law enforcement officers may take many forms 

including requesting, asking, suggesting, overbearing 
191

persuasion, fraudulent representations, threats, coercive 

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

need, sympathy, or friendship.

a. Permitted Inducements

Some inducements are unlikely to tempt a law-abiding person 

to commit a crime. Some inducements are so innocuous that 

courts generally approve their use. Examples include: use of 

decoys (‘robo’ deer – decoys used to entice poachers), payments 

of reasonable amounts of money, or assistance in facilitating 

the commission of the crime by providing equipment or 

supplies (e.g., paper for counterfeiting or chemicals for drug 

manufacturing).

b. Prohibited Inducements

Some inducements are so coercive that their use jeopardizes 

any chance of successful prosecution. These inducements may 

create the appearance, and sometimes the reality, of outright 

duress. Examples include:

• Threats against the well-being of the target’s family.

• Extreme appeals to the sympathy or emotions of the 

solicited target.

• Offers of unreasonable amounts of money to an 

impoverished or financially desperate target.

• Continuous pressure such as repeated phone calls, visits 

or requests; repeated insistence, badgering.

• Violent demonstrations, for example, threats regarding 

loss of job, or custody of children.
192

In some cases, government conduct can be so outrageous that 

due process principles will absolutely bar the government from 

obtaining a conviction. To establish outrageous government 

conduct, there must be over-involvement by the government 

combined with a passive role by the defendant. In other words, 

the government conduct must be so outrageous that it shocks 

the universal sense of justice and fundamental principles of 

fair play. For example, when the government supplies a 

defendant with counterfeit currency for the sole purpose of

indicting him for receiving counterfeit currency with the intent 

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

process.

10.3.2 Predisposition

Predisposition means that the defendant is presently ready 

and willing to commit the crime. Predisposition is a state of 

mind that readily responds to the opportunity furnished by the 

government or its agent to commit the offense.

The government can establish predisposition in many ways to 

include:

• Statements made by the defendant before, during, and 

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.
193

• Acceptance of an offer to supply the last essential 

ingredient to manufacture drugs.

10.3.3 Examples of Predisposition

a. An Existing Course of Similar Conduct

The defendants have been selling cocaine for some time when 

an undercover agent makes a purchase from them. The 

criminal intent or design did not originate from the 

government, as the defendants were predisposed.

b. Previously Formed Intent

The defendant purchased paper and ink and was trying to get 

a counterfeit operation underway, when government agents 

heard of her intent and provided additional materials and 

expertise. The criminal intent in this instance was not the 

creation of the government – the defendant was predisposed.

c. A Ready Response to a Criminal Offer

An undercover agent asks a bootlegger, “How much for a 

bottle?” The bootlegger promptly replies, “$5.00.” It was 

obviously not necessary for the government to “lure, inspire, or 

persuade” the bootlegger, who was clearly ready and willing to 

commit the crime as soon as an opportunity arose.

10.3.4 Examples of No Predisposition

a. Extreme Appeals to Emotion

An undercover government agent approaches a nurse in a 

hospital and asks for a prescription pain-killing drug. The 

nurse is reluctant to provide it. The agent persists, telling the 

nurse that his daughter is dying of cancer and he can’t stand 
194

to see his daughter suffer. After numerous requests and 

begging for help by the agent, the nurse relents and provides 

a small amount of the drug.

b. Threats

A government informant tells a government officer that Bob 

might be interested in drug smuggling. The informant then 

kidnaps Bob’s wife and tells Bob he had better smuggle a load 

of cocaine for the informant to sell or the informant will kill his 

wife. Bob agrees to smuggle the cocaine.

c. Excessive Amounts of Money

An officer knows that a business executive is having serious 

money problems in running his business. The officer offers the 

business executive $75 million to smuggle a small amount of 

illegal weapons into the country. After a few requests, the 

business executive agrees to smuggle the weapons.

10.4 Conclusion 

Law enforcement officers who induce individuals to commit 

crimes should be prepared to refute an entrapment defense 

with facts demonstrating the defendant’s predisposition. 

Detailed reports documenting the defendant’s statements and 

actions greatly enhance the government’s ability to negate the 

defense. However, the Supreme Court has indicated 

outrageous government conduct, which orchestrates a 

criminal offense, can be a bar to prosecution, even if the 

defendant is predisposed. Therefore, proper investigation 

planning, to include monitoring and controlling informants to 

ensure fair treatment, is essential.
195

Chapter 11 - 

 

Criminal Law – False Statements 

 

11.1 Title 18 U.S.C. § 1001 – Elements ........................... 195

11.1.1 Regarding Certain Federal Matters ......................195

11.1.2 Knowingly and Willfully – Intent..........................197

11.1.3 Materiality ..............................................................197

_______________________________________________________

11.1 Title 18 U.S.C. § 1001 – Elements 

In order to successfully prosecute a defendant for violating 

18 U.S.C. § 1001, the following elements must be proven 

beyond a reasonable doubt:

• Regarding certain federal matters;

• The Defendant knowingly and willfully;

• made a false material statement, OR concealed or 

covered up a material fact, OR made or used a document 

containing a false material statement.

11.1.1 Regarding Certain Federal Matters

Section 1001 applies to false statements made in a matter 

within the criminal jurisdiction of the executive, legislative, or 

judicial branches. False material statements include 

statements and documents, made or used, that contain 

material false statements or those which cover up or conceal 

material facts. The statute applies to statements made during 

administrative, civil, or criminal investigations, or during 

regulatory or rule-making activities, with the following 

limitations:
196

a. Judicial Proceedings

Section (a) of § 1001 does not apply to a party or to a party’s 

counsel for any statements, representations, writings or 

documents submitted by them to a judge or magistrate during 

a judicial proceeding. Thus, non-parties could be prosecuted 

for any false statements made during a judicial proceeding, 

while a party could only be prosecuted for false submissions 

made to a judicial entity during administrative housekeeping 

matters. Such entities include, for example, the Office of 

Probation and the Clerk of the Court.

b. Legislative Branch Matters

Section (a) of § 1001 applies to matters within the jurisdiction 

of the legislative branch only if they relate to administrative 

matters or Congressional investigations conducted consistent 

with applicable Congressional rules. Administrative matters 

include such things as financial disclosure filings, claims for 

payment made to the House Finance Office, and submissions 

to legislative entities, such as the General Accounting Office, 

the Government Printing Office, the Library of Congress, the 

Office of the Inspector General of the House, and the Capitol 

Police.

Duly authorized investigations or reviews are those that are 

initiated through a formal action of a House or Senate 

committee, or the whole House or Senate. Inquiries by 

members of Congress or their staff are not a duly authorized 

investigation under § 1001.

The statute covers material false statements made to a federal 

agency by a witness/informant about alleged criminal acts 

within the jurisdiction of the agency, even when no such 

criminal acts actually occurred. False material statements 

made to an agency regarding the regulatory functions of a 
197

federal department or agency fall under § 1001. Federal courts 

have upheld convictions under this section for individuals who 

have made false material statements involving various state 

awarded contracts that are federally funded.

11.1.2 Knowingly and Willfully – Intent

To constitute a § 1001 violation, a false material statement 

must be capable of affecting the exercise of a government 

function. The intent must be to deceive or mislead. Intent to 

defraud is not required for a successful § 1001 prosecution.

11.1.3 Materiality

For a person to be convicted of making a false statement under 

§ 1001, the false statement must be material. The Supreme 

Court has held that a material statement must have a natural 

tendency to influence, or be capable of influencing, the decision 

of the decision-making body to which it was addressed. 

Materiality is a mixed question of law and fact for the jury.

A false material statement, under § 1001, is not required to be 

made under oath or affirmation. The false material statement 

can be oral (a statement made during an interview) or can be 

written (part of a document submitted to an agency). False 

material statements made on federal tax documents, in 

interviews related to a tax investigation, on an application for 

federal employment, and during an interview with a Customs 

official at a secondary inspection site are violations of § 1001.

At one time, some circuits held that false “exculpatory no” 

statements made by a suspect to agents in a criminal 

investigation did not violate § 1001. An “exculpatory no” 

statement is a statement in which a suspect denies he is guilty 

of the crime which he knows he committed. However, the 

Supreme Court now holds § 1001 covers any false material 

statement, of whatever kind, including the use of the word “no” 
198

in response to a question. The “exculpatory no” statement 

must be material to the investigation. Title 18 U.S.C. § 1001 

does not require a suspect to talk to law enforcement, as a 

suspect has a constitutional right to remain silent. However, if 

the suspect chooses to speak, the suspect has no constitutional 

right to lie to a federal law enforcement officer. Consequently, 

when a suspect lies to an investigator by responding “No” to a 

question that asks if the suspect committed the offense, and 

the government can prove that the suspect did in fact commit 

the offense, the suspect can be prosecuted for a § 1001 

violation.
199

Chapter 12 - 

 

Criminal Law – Theft and Related Crimes 

12.1 Introduction: Title 18 U.S.C. § 641 .......................... 199

12.2 Terms of the Statute ................................................ 200

12.3 Theft ......................................................................... 200

12.3.1 Elements .................................................................200

12.3.2 Example ..................................................................201

12.4 Embezzlement .......................................................... 202

12.4.1 Elements .................................................................202

12.4.2 Example ..................................................................203

12.5 Conversion ............................................................... 203

12.5.1 Elements .................................................................204

12.5.2 Example ..................................................................204

12.6 Receipt of Stolen Property ....................................... 205

12.6.1 Elements .................................................................205

12.6.2 Example ..................................................................206

_______________________________________________________

12.1 Introduction: Title 18 U.S.C. § 641 

Title 18 U.S.C. § 641, titled “Public Money, Property or 

Records,” is a comprehensive statute designed to address four 

crimes which, at common law, were separate and distinct 

offenses. The statute applies to theft, theft by embezzlement, 

theft by conversion, and theft by receiving stolen property of 

the United States government or any department or agency 

thereof.
200

12.2 Terms of the Statute 

For purposes of the statute, “property” refers to any “record, 

voucher, money, or thing of value” belonging to, “or any 

property made or being made under contract for,” the United 

States or any department or agency thereof. If the value of the 

property stolen, embezzled, converted, or received is more than 

$1,000, the offense is a felony, which is punishable by ten years 

imprisonment 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 imprisonment of up to one year and a maximum fine of 

$100,000. The government must allege the value of the stolen 

government property in the charging document and prove it 

beyond a reasonable doubt at trial.

12.3 Theft 

Section 641 codifies the common law crime of larceny (theft). 

“Theft” is the wrongful taking and carrying away of property 

belonging to the United States government or any agency 

thereof with the intent to deprive the United States 

government of the use or benefit of the property so taken.

12.3.1 Elements

The government must prove three elements to convict a 

defendant of theft under § 641:

• That the defendant voluntarily, intentionally, and 

knowingly;

• Stole property belonging to the United States or any 

department or agency thereof;

• With the intent to deprive the United States of the use 

or benefit of the property so taken.
201

12.3.2 Example

A defendant takes a vehicle that belongs to the United States 

government and paints the vehicle a different color, intending 

to keep it for his own use. The defendant is guilty of theft of 

government property. He knowingly stole property belonging 

to the United States with the intent to deprive the United 

States of the use of the property. The fact that the defendant 

repaints the vehicle is an example of evidence the government 

could introduce to show the defendant intended to keep the 

vehicle for his own use, thus depriving the government of the 

use and benefit of the vehicle.

A defendant “steals” property when he or she takes and carries 

away property belonging to another (the government) with the 

intent to deprive the owner (the government) of the property. 

To successfully prosecute a defendant for theft under § 641, 

the government must prove that the defendant had, at the 

time of the taking, the specific intent to deprive the rightful 

owner of the property of its use and benefit. The government 

is not required to prove that the defendant knew that the item 

he stole belonged to the United States or one of its 

departments or agencies or that the property was made or 

being made under contract for the United States. Rather, the 

government need only prove that the defendant knew he was 

taking something that did not belong to him. The government 

must prove the property belonged to the United States to 

establish federal jurisdiction over the crime. The defendant’s 

knowledge of this jurisdictional fact is irrelevant. In order to 

prove 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 property he reasonably believed was 

abandoned, he may raise that as a defense to a prosecution 

under § 641.
202

If the government alleges the theft was a felony crime, the 

government must prove that the value of the item stolen is 

greater than $1,000.

12.4 Embezzlement 

“Embezzlement” is the wrongful, intentional taking of 

property of another by an individual to whom the property had 

been lawfully given because of some office, employment, or 

position of trust (such as a bank manager). In other words, the 

defendant initially takes the property lawfully with the 

express or implied consent of the owner.

However, after the defendant lawfully acquires the property 

because of the defendant’s position of trust (sometimes 

referred to as a “fiduciary” relationship), the defendant 

intentionally takes the property with the intent of depriving 

the owner (the United States in a § 641 crime) of the use or 

benefit of the property.

12.4.1 Elements

The government must prove three elements to convict a 

defendant of embezzlement under § 641. With the exception of 

the second element, the elements of embezzlement are the 

same as those for theft. These elements are:

• That the defendant voluntarily, intentionally, and 

knowingly;

• Embezzled property belonging to the United States or 

any department or agency thereof;

• With the intent to deprive the United States of the use 

or benefit of the property so taken.
203

12.4.2 Example

A federal postal employee is responsible for selling stamps to 

the public. At the end of the workday, the employee is 

obligated to deposit the day’s cash receipts into the 

government account. Instead, the employee pockets the money 

for his personal use. The employee has committed the crime of 

embezzlement. The money was the property of the United 

States. The government initially entrusted the employee with 

the money – in the course of his employment, he accepted the 

money in exchange for the stamps he sold. The employee 

pocketed the money, thus depriving the United States of its 

use and intentionally appropriated it to his own personal use.

While the elements are virtually identical for both crimes, 

embezzlement and theft are separate and distinct offenses. In 

the crime of embezzlement, the defendant originally acquires 

the property lawfully, and it is in the defendant’s rightful 

possession. The defendant commits no fraud or crime when he 

or she originally obtains the property. It is only after the 

government has entrusted the property to the defendant that 

he or she deprives the government of the use of the property 

by a wrongful taking. This is the primary difference between 

embezzlement and theft of government property. In theft, the 

property is not initially in the defendant’s rightful possession, 

and the intent to deprive the United States of the property 

must exist at the time of the taking. As with the crime of theft, 

if the government alleges the embezzlement was a felony, it 

must prove that the value of the property embezzled was more 

than $1,000. An individual can embezzle money or property 

belonging to the government.

12.5 Conversion 

“Conversion” is wrongfully depriving the United States or any 

department or agency thereof of its property. In its most basic 

form, “conversion” simply means that an individual lawfully 
204

comes into possession of United States property and 

wrongfully converts it to his or her own use. Theft by 

conversion differs from embezzlement because it does not 

require that the defendant intends to keep the property 

permanently. Conversion differs from theft because it does not 

require an unlawful taking by the defendant. Under § 641, 

theft by conversion includes misuse or abuse of government 

property, as well as use of the property in an unauthorized 

manner or to an unauthorized extent. Conversion deprives the 

government of the benefit and use of the property.

12.5.1 Elements

The government must prove three elements to convict a 

defendant of theft by conversion under § 641. With the 

exception of the second element, the elements of conversion are 

identical to those of theft and embezzlement. These elements 

are:

• That the defendant voluntarily, intentionally, and 

knowingly;

• Converted property belonging to the United States or 

any department or agency thereof;

• With the intent to deprive the United States of the use 

or benefit of the property so taken.

If the government alleges the crime was a felony, it must prove 

the value of the property converted was more than $1,000.

12.5.2 Example

Conversion often involves misuse of government property for 

personal reasons. For example, a federal agency has a 

government vehicle for its employees to use for official 

purposes. At lunch one afternoon, one of the employees uses 
205

the government vehicle to go shopping for a couple of hours at 

a local mall. The employee is guilty of conversion under § 641. 

The employee wrongfully deprived the United States 

government of the use and benefit of its property, in this case 

by using the vehicle in an unauthorized manner and to an 

unauthorized extent.

12.6 Receipt of Stolen Property 

The statute also prohibits knowingly receiving stolen, 

embezzled, or converted United States government property. 

Because the individual receiving the property knows that it 

has been stolen, embezzled or converted, he or she does not 

have any legal interest in the property, which continues to 

belong to the party from which it was stolen (i.e., the United 

States).

12.6.1 Elements

The government must prove four elements to convict a 

defendant of theft by receiving stolen property under § 641.

• That the defendant voluntarily, intentionally, and 

knowingly received;

• Stolen, embezzled, or converted property belonging to 

the United States government or any department or 

agency thereof;

• Knowing that the property had been stolen, embezzled, 

or converted;

• With the intent to deprive the United States of the use 

or benefit of the property.
206

12.6.2 Example

A federal employee steals a computer belonging to the United 

States government. The employee takes it to a friend and asks 

him if he would like to buy it at a discount. When asked about 

the origin of the computer, the employee admits to the friend 

that he stole it. The friend agrees to purchase the computer. 

While the federal employee is responsible for theft of 

government property, the friend is responsible for theft by 

receiving stolen property. The friend received the computer 

knowing that the computer was stolen property. The friend 

received the computer with the intent to deprive the rightful 

owner of its use by taking possession of the computer for his 

own use.

As with theft, the government need not prove that a defendant 

accused of theft by receiving stolen property under § 641 knew 

the stolen property belonged to the United States government 

or any agency or department thereof. The government is 

required to prove that the defendant knew the property was 

stolen, embezzled or converted. The government must prove 

its ownership of the property only to establish federal 

jurisdiction; it is not an element of the offense. If the value of 

the property is more than $1,000, the crime is a felony.

Remember, all four types of theft set forth in the statute apply 

to government property, to include property made under 

contract for the United States.
207

Chapter 13 - 

 

Criminal Law – Federal Fraud Statutes 

13.1 Introduction ............................................................. 207

13.2 Mail Fraud - 18 U.S.C. § 1341 ................................. 209

13.2.1 Elements .................................................................209

13.2.2 Definition of Fraud .................................................209

13.2.3 Application of the Mail Fraud Statute ..................209

13.2.4 Examples of Common Schemes .............................212

13.3 Wire Fraud - 18 U.S.C. § 1343 ................................. 214

13.3.1 Elements .................................................................214

13.3.2 Application of the Wire Fraud Statute..................214

13.4 National Stolen Property Act - 18 U.S.C. § 2314 ..... 216

13.4.1 Interstate Transportation of Stolen Goods – The

Elements................................................................................216

13.4.2 Proving the Elements .............................................216

13.4.3 Travel Fraud – The Elements ..............................219

13.4.4 Proving the Elements .............................................219

13.4.5 Transportation of Falsely Made, Altered, or 

Counterfeited Securities or Tax Stamps – The Elements ...220

13.4.6 Proving the Elements .............................................221

13.5 Venue ....................................................................... 223

_______________________________________________________

13.1 Introduction 

The concept of “federalism” embodied in our U.S. Constitution 

- independent states relinquishing certain of their rights, 

while maintaining others to form a more workable union -

helped create the world’s greatest democracy, but it also posed 

significant challenges. Issues arose regarding how to prevent 
208

and prosecute crimes spanning more than one state. When con 

artists used the mail transported by pony express to defraud 

victims in distant states, which state’s law did they violate and 

where could they be prosecuted once apprehended? If thieves 

stole property in one state but transported it across state lines 

for sale in another state, which state’s laws applied? Which 

state’s officials were responsible for the investigating, 

arresting and prosecuting the thieves? As a result, early in our 

history, a suspect’s flight across state lines for all but the most 

heinous crimes was the most effective means of eluding 

capture and conviction.

As the nation’s borders expanded and its population grew, 

Congress recognized the increasing need to combat these 

interstate crimes and responded by enacting legislation based 

primarily on its authority under Article I, Section 8, Clause 3 

of the Constitution to regulate commerce among the several 

States. Consequently, federal investigators and prosecutors 

now have a vast array of federal statutes to combat crimes that 

cross state lines by employing means of interstate 

transportation and communication. In the fraud area, those 

statutes include 18 U.S.C. § 1343, Fraud by Wire, Radio, or 

Television (more commonly referred to as the Wire Fraud 

Statute), and 18 U.S.C. § 2314, Transportation of Stolen 

Goods, Securities, Moneys, Fraudulent State Tax Stamps, or 

Articles Used in Counterfeiting (more commonly known as the 

Interstate Transport of Stolen Property or “ITSP”). Congress 

also looked to its Constitutional authority to establish post 

offices and post roads (Article I, Section 8, Clause 7) to enact 

18 U.S.C. § 1341, Frauds and Swindles (the Mail Fraud 

Statute). Together, these three statutes are the federal 

government’s primary weapons in prosecuting fraud schemes 

involving interstate commerce or use of the mails.
209

13.2 Mail Fraud - 18 U.S.C. § 1341 

13.2.1 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.

13.2.2 Definition of Fraud

Fraud is the intentional presentation of falsehoods as truth 

with the goal of causing someone to part with something of 

value under false pretenses. The words “to defraud” commonly 

refer to adversely affecting someone’s property rights by 

dishonest methods or schemes. It usually involves injury to, or 

loss of, property resulting from the use of deceit, trickery, or 

overreaching.

13.2.3 Application of the Mail Fraud Statute

a. In General

Each use of the Unites States mail or an interstate carrier 

(such as United Parcel Service or Federal Express) in 

furtherance of a scheme to defraud is a chargeable count of 

mail fraud. A simple example would be a defendant who used 

the mail to order goods for which he had no intention of paying. 

The defendant’s mailing of the order form would be chargeable 

as one count of mail fraud. The mailing of the goods by the 
210

seller to the defendant would be a second count of mail fraud 

under § 1341.

The government is not required to prove the defendant 

intends, or even knows, about the use of the mail. In fact, the 

defendant may take deliberate steps to avoid using the mail 

and still violate the statute. It is sufficient that the use of the 

mail was reasonably foreseeable to the defendant. Thus, under 

the mail fraud statute, the government can prosecute a 

defendant who hand-delivers a fraudulent claim to his 

insurance agent if the insurance agent mails the claim to the 

home office for processing. Though the defendant intended to 

avoid use of the mail by hand delivering the claim, it was 

reasonably foreseeable to the defendant that his agent would 

mail the claim.

Accordingly, a defendant can be criminally liable for a mailing 

which he or she did not personally place in the mail and which 

does not itself contain a false representation. If the defendant 

caused the mail to be used and the mailing was in furtherance 

of the overall scheme to defraud, the defendant is liable for 

mail fraud. In the example above, the seller (victim) mails the 

goods to the defendant, who does not intend to pay for them. 

The defendant did not mail the goods, but caused the seller to 

use the mails to ship the goods in response to the defendant’s 

order. There was no false representation involved in the 

mailing of the goods by the seller to the defendant. However, 

the mailing furthered the defendant’s overall scheme to 

defraud the seller.

Finally, unlike the Wire Fraud statute (§ 1343) discussed 

below, the mailings charged in a mail fraud prosecution can be 

intrastate (solely with in one state). Thus, a victim’s check 

mailed from Manhattan,

N.Y. to the defendant in Brooklyn, N.Y., is chargeable as mail 

fraud.
211

Remember, the same principles apply if the defendant uses the 

U.S. mail or a private interstate commercial carrier, such as 

FedEx, UPS, or DHL.

b. “Furtherance of the Scheme”

A mailing is chargeable under the mail fraud statute if it is in 

furtherance of the scheme to defraud. Use of the U.S. mail or 

a private interstate carrier does not need to be an “essential” 

part of the fraudulent scheme so long as it is a step in the plot 

to complete the fraudulent scheme.

Mailings made after the fraudulent scheme is complete are not 

chargeable. For example, if someone uses a stolen credit card 

to purchase products and services, the credit card company 

will subsequently mail an invoice to the authorized cardholder 

for payment. The cardholder may mail a check in payment of 

the invoice. The government cannot charge these mailings as 

mail fraud, because the fraudulent scheme was already 

complete.

However, the courts have distinguished between mailings 

after the completion of the fraud, which are not chargeable 

under § 1341, and “lulling letters.” Lulling letters are mailings 

designed to lull the victims into a false sense of security, 

postpone their ultimate complaint to the authorities, and 

therefore make the apprehension of the defendant less likely. 

As an example, if an investment advisor 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. Although 

the investment advisor made these mailings after the victims 

had already lost their money, the advisor designed the 

mailings to 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 can sometimes 
212

enable prosecutors to indict cases that they otherwise could 

not, due to the expiration of the five-year statute of limitations.

13.2.4 Examples of Common Schemes

Fraud schemes come in all shapes and sizes, limited only by 

the perpetrator’s creativity. The great benefit of the mail fraud 

statute is its easy adaptability to any type of scheme in which 

the defendant has obtained something of value by “conning” 

his or her victim. Described below are a few of the “garden 

variety” schemes that the government has successfully 

prosecuted using the mail fraud statute. Keep in mind, 

however, that these are only a few examples of the many 

schemes to which a federal investigator can apply the mail 

fraud statute.

a. Bribes and Kickbacks – Public Corruption

Where a public official solicits or receives a kickback in 

exchange for official action benefiting certain persons or 

groups, the government may prosecute that public official for 

mail fraud if the mails were used in furtherance of the scheme.

b. Bribes and Kickbacks – Private Corruption

In mail fraud cases involving misuse of corporate positions by 

executives seeking private gain, the scheme to defraud must 

involve bribery or kickbacks that deprive the corporation or its 

shareholders of honest services. The government can 

prosecute any mailing to execute the bribery or kickback 

scheme as mail fraud.

c. Fraud Against Consumers

A business may “puff” or exaggerate the virtues of its product, 

but may not fabricate non-existent qualities. A business may 

not offer an item and fail to deliver it or substitute it for 
213

another item of materially different quality or characteristics. 

Any mailing that assists in the execution or completion of such 

a scheme is chargeable as mail fraud. Examples include 

odometer rollback schemes (the mailing occurs when the 

defendant sends the false odometer certification to the state); 

telemarketing fraud (the mailing occurs when the victims send 

the money to obtain the non-existent product); and 

sweepstakes that require people to send money to win or 

receive their prize.

d. Fraud Against Business

Anyone who files a false claim with a business by using the 

mail violates the mail fraud statute. Such schemes include 

false claims for insurance, bad faith refusals to pay for 

rendered goods and services, sales of supplies and equipment 

of inferior quality or that do not conform to agreed-upon 

specifications, and false applications for financing.

e. Fraud Against Government

Anyone who files a false claim with the federal, state or local 

government by using the mail violates the mail fraud statute. 

Examples include state or local tax fraud, false claims for 

Veterans Administration, Social Security, workers 

compensation and other government benefits; false education 

certifications; or false college loan applications.

f. Private Fraud

Any person who commits a fraud against another person and 

either uses the mail or causes the mail to be used in 

furtherance of the scheme commits 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 violated the mail fraud 

statute.
214

13.3 Wire Fraud - 18 U.S.C. § 1343 

13.3.1 Elements

The statute requires proof of the following elements:

• Any person who intentionally;

• Devises a fraudulent scheme, and;

• Uses or causes an interstate wire transmission to be 

used;

• In furtherance or support of the scheme.

13.3.2 Application of the Wire Fraud Statute

The wire fraud statute prohibits the use, in interstate 

commerce, of the telephone, television, telegraph, and internet 

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 difference between mail fraud and wire fraud 

statutes is the nature of the communication method the 

defendant uses in furtherance or support of the scheme – a 

mailing or an interstate wire transmission.

The wire fraud statute requires that the signal or wire 

transmission forming the basis of the charge must cross state 

lines. Thus, a telephone call the defendant places on a landline 

phone to his next- door neighbor that is in furtherance of his 

fraud scheme will not be chargeable under § 1343 because it is 

not an interstate call. However, that same call made to an outof-state victim would serve as an indictable wire fraud charge. 

A cell phone call that connects through a tower in another 

state would be sufficient to establish the interstate connection, 
215

even if the defendant made the phone call to the person living 

next door.

As with the mail fraud statute, the wire fraud statute does not 

require the defendant himself to place the telephone call or 

send the facsimile message. It is sufficient that the use of the 

telephone, facsimile, computer, television or radio was 

reasonably foreseeable to the defendant. Federal investigators 

have commonly relied on the wire fraud statute in cases 

involving the wiring of funds through the banking system by 

fraud victims; schemes in which defendants have used the 

internet to order products for which they had no intention of 

paying; “pump and dump” schemes in which defendants have 

sold stocks for huge profits after using the internet to 

fraudulently tout their value; and most popular of all, the everpresent fraudulent telemarketing schemes. Like the mail 

fraud statute, § 1343 is extremely versatile and remains a 

favorite weapon of federal prosecutors. In one case, the 

government successfully prosecuted a fertility specialist under 

the wire fraud statute whose fraud victims made interstate 

telephone calls to schedule appointments at his office.

As technology changes and our interstate communications 

system evolves from “wire” to “broadband” and other yet to be 

developed hardware, federal investigators can expect to see 

innovative applications of the wire fraud statute, as well as 

new legislation aimed specifically at combating these new 

mechanisms of fraud. Despite § 1343’s short title as the “wire 

fraud” statute, federal prosecutors have already applied it to 

interstate communications effected by telephones other than 

“land lines,” based on its application to radio transmissions. 

Wire fraud also applies to fraudulent schemes involving 

foreign commerce.
216

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

The National Stolen Property Act, codified at 18 U.S.C. § 2314, 

is commonly referred to as the Interstate Transport of Stolen 

Property Act, or “ITSP”. Congress enacted § 2314 in 1934 to 

“federalize” thefts and frauds that crossed state lines. In 1990, 

Congress amended the ITSP to include the transportation of 

stolen goods through foreign commerce.

Section 2314 contains six distinct provisions that criminalize 

activities involving the transportation of certain specified 

items and persons across state lines and in interstate 

commerce. Each such provision requires its own elements of 

proof. This course will address only the first three provisions 

of the statute.

13.4.1 Interstate Transportation of Stolen Goods – The

Elements

The first provision of ITSP prohibits the interstate 

transportation of stolen, converted or fraudulently obtained 

goods. It requires proof of the following elements:

• Transportation in interstate or foreign commerce;

• Of any goods, wares, merchandise, securities, or money 

valued at $5,000 or more;

• Knowing the same to have been stolen, converted, or 

taken by fraud.

13.4.2 Proving the Elements

a. Interstate or Foreign Commerce

The property or money obtained by theft or fraud must have 

been transported or transferred across state lines or in foreign 
217

commerce. Transportation or transfer of such items within a 

single state does not satisfy this element of the statute. The 

transportation or transfer of stolen or fraudulently obtained 

property or money from one state to another or between the 

United States and a foreign country violates the statute and 

confers federal jurisdiction over the crime. Thus, a thief who 

steals property in Georgia and then transports it to Florida 

commits a violation of the first paragraph of ITSP. If instead 

the thief remains in Georgia with the stolen property, he has 

violated state law, not federal law.

b. Transport, Transfer or Transmit

The method the defendant uses to transport or transfer the 

stolen or fraudulently obtained property or money is not 

material. That is, the defendant can transport the item 

personally, enlist another person to transport the item, or use 

the United States mail or a private or commercial courier. Any 

of these methods satisfy this element of the statute. Interstate 

wire transfers of funds a defendant obtains through theft or 

fraud are also violations of ITSP.

The courts have consistently held that the government can 

charge ITSP concurrently with the mail fraud and wire fraud 

statutes because each statute demands proof of at least one 

different element. With regard to foreign commerce, ITSP 

makes it a crime to transport to the United States goods stolen 

in a foreign country, even if they do not subsequently travel in 

interstate commerce once they arrive in the United States. 

Likewise, the transportation or transmission to a foreign 

country of property or money obtained by fraud or theft in the 

United States violates ITSP.

c. Value of $5,000 or More

The stolen or fraudulently obtained property transported in 

interstate or foreign commerce must be valued at $5,000 or 
218

more. This requirement prevents the over-extension of federal 

law enforcement resources by restricting their application to 

more substantial frauds and thefts. To determine the 

appropriate measure of value, the courts refer initially to 18 

U.S.C. § 2311, which defines value as face, par, or market 

value, whichever is the greatest. For items with no face or par 

value, the courts have generally defined market value as the 

price a willing buyer would pay a willing seller at the time and 

the place the property was stolen or at any time during the

receipt or concealment of the property. In applying this 

standard, the courts look to the particular facts of each case 

and pose the question: in what type of transaction would the 

person from whom the defendant stole the property 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.”

The government can charge each interstate or foreign 

transport or transfer of an item valued at $5,000 or more as a 

separate count of ITSP. In addition, the government can 

aggregate the value of separate shipments of stolen goods to 

reach the jurisdictional amount of $5,000 or more, and charge 

the separate shipments as a single offense. To do so, the 

government would have to establish a relationship between 

the separate shipments, such as establishing them as 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 
219

is not required to prove that the defendant knew, foresaw, or 

intended that the stolen items were or would be transported in 

interstate or foreign commerce. The courts have generally held 

that the jury may infer that a person in possession of recently 

stolen property knew the property was stolen, unless such 

possession is satisfactorily explained.

13.4.3 Travel Fraud – The Elements

The second provision of ITSP prohibits “travel fraud” - causing 

potential victims of a fraudulent scheme to travel in interstate 

or foreign commerce in furtherance of or to conceal a 

fraudulent scheme. Thus, pursuant to the ITSP, the 

government can prosecute a con artist who misleads his victim 

in a face-to-face encounter 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 travel fraud 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 $5,000 or more.

13.4.4 Proving the Elements

a. Transport or Induce to Travel in Interstate or 

Foreign Commerce

Proof that a potential or actual victim of a fraud scheme 

travels in interstate or foreign commerce in connection with 

the scheme satisfies this element of travel fraud. The 

government is not required to prove the victim actually parted 

with money or property. It is sufficient if the defendant 

induced the victim to travel in an effort to defraud the victim. 

In addition, the government need not prove that the money or 

property the defendant seeks or receives from the victim 
220

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 the con artist is offering in a 

fraudulent scheme, the government can charge him with 

travel fraud whether or not the neighbor invests. The key to 

travel fraud is the interstate travel of the victim.

b. To Defraud a Person of $5,000 or More

As with the Mail Fraud and Wire Fraud statutes, the 

government must prove the defendant’s intent to defraud, as 

discussed in the Mail Fraud section of this chapter. As with 

the first provision of ITSP, travel fraud requires that the 

suspect defrauded or endeavored to defraud the victim of 

$5,000 or more.

13.4.5 Transportation of Falsely Made, Altered, or 

Counterfeited Securities or Tax Stamps – The Elements

The third provision of ITSP prohibits the transportation of 

falsely made, forged, altered or counterfeited securities or tax 

stamps in interstate and foreign commerce. It requires proof of 

the following elements:

• Transport in interstate or foreign commerce;

• Falsely made, forged, altered, or counterfeited securities 

or tax stamps;

• With unlawful or fraudulent intent;

• Knowing the securities or tax stamps to be forged, 

altered, or counterfeited.
221

13.4.6 Proving the Elements

a. Securities

Securities include stock certificates, bonds, money orders, 

motor vehicle titles, and checks. While the courts have 

included checks within the definition, they have found the 

language “falsely made, forged, altered or counterfeited 

securities” does not include checks with forged endorsements. 

It does include checks signed by a maker using a fictitious 

name, checks drawn on an account opened with a fictitious 

name, checks bearing a forged signature of an authorized 

signatory to the account, checks drawn on closed accounts, and 

checks bearing the actual signature of a person not authorized 

to act as a signatory on the account. (Note that checks with 

forged endorsements that are stolen or obtained by fraud and 

transported across state lines could be charged under 

paragraph one of ITSP if they meet the $5,000 valuation 

requirement).

Airline tickets, credit cards, credit card slips, and leases do not 

fall within the definition of “securities” under this third 

paragraph (See 18 U.S.C. § 2311 for the statutory definition of 

securities). In addition, the final paragraph of Section 2314 

states that the statute’s provisions do not apply to counterfeit 

obligations and securities of the United States or any foreign 

government, nor falsely made or counterfeit foreign currency.

The primary reason for this exclusion of United States 

obligations and securities is that “trafficking in counterfeits, 

forgeries and spurious representations of [these instruments] 

is made criminal elsewhere in the United States Code by anticounterfeiting statutes,” such as 18 U.S.C. § 471.
222

b. Interstate or Foreign Commerce

Each act of transporting falsely made, forged, or counterfeited 

securities in interstate or foreign commerce is a single offense 

under ITSP that the government can charge as one count. 

Thus, the government can charge a defendant who transports 

several forged checks or securities at one time with only one 

count of ITSP. Alternatively, the government may charge as 

separate counts of ITSP each negotiated check that enters 

interstate commerce to be processed through the banking 

system. Thus, the government can charge a defendant who 

makes payment with falsely made or forged checks drawn on 

an out-of-state bank with one count of ITSP for each 

negotiation and subsequent interstate transfer of the check in 

the bank collection process.

c. Fraudulent Intent

The government must establish that the defendant 

transported the forged or counterfeit check or security with 

unlawful or fraudulent intent. The prosecutor can establish 

the required intent through direct evidence of the defendant’s 

own statements and/or through circumstantial evidence of his 

participation in the scheme to transport or negotiate the 

securities.

d. Knowledge of Forgery or Counterfeit

To sustain a conviction under this paragraph of ITSP, the 

government must prove the defendant knew the security 

transported in interstate or foreign commerce was forged or 

counterfeited at the time of its transportation. It is not 

necessary to prove that the defendant forged the security 

himself. The government only needs to establish that the 

defendant knew the securities transported were forged.
223

13.5 Venue 

Venue for violations of the Mail Fraud statute, Wire Fraud 

statute and ITSP is governed by 18 U.S.C. § 3237. This statute 

provides in pertinent part: “Any offense involving the use of 

the mails, transportation in interstate or foreign commerce, or 

the importation of an object or person into the United States 

is a continuing offense and, . . . may be inquired of and 

prosecuted in any district from, through, or into which such 

commerce, mail matter, or imported object or person moves.”

Accordingly, the government can charge mail fraud cases 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. The government can charge wire 

fraud cases in the districts from which the transmission was 

sent, through which it passed, and in which it was received. 

The government can charge ITSP in the districts from which 

the stolen items or victims originated, through which they 

traveled, and in which they completed their journey. 

Generally, Department of Justice policy is to charge violations 

of these three statutes at their beginning or ending points, 

rather than in the districts through which the mail, 

transmission, victims or property merely passed.
224

 
225

Chapter 14 - 

 

Criminal Law – Human Trafficking 

14.1 Introduction ............................................................. 225

14.2 Peonage - Title 18 U.S.C. § 1581 ............................. 226

14.2.1 Elements of Peonage ..............................................226

14.2.2 Definitions: Peonage / “Holds” ...............................226

14.2.3 Punishments for Peonage.......................................227

14.3 Forced Labor - Title 18 U.S.C. § 1589 ...................... 227

14.3.1 Elements of Forced Labor ......................................228

14.3.2 Definitions of Forced Labor....................................229

14.3.3 Punishments for Forced Labor ..............................230

14.4 Sex Trafficking - Title 18 U.S.C. § 1591 .................. 230

14.4.1 Four Classes of Victims of Sex Trafficking ...........230

14.4.2 Elements of Sex Trafficking...................................230

14.4.3 Definitions of Sex Trafficking ................................232

14.4.4 Punishments ...........................................................233

_______________________________________________________

14.1 Introduction 

Human Trafficking has been called modern day slavery. 

Although the Thirteenth Amendment to the Constitution 

abolished slavery and indentured servitude in the United 

States, this form of slavery continues to persist in the U.S. and 

around the world, despite the fact that this defies federal law, 

state law, and international law. The Department of 

Homeland Security developed a program called the Blue 

Campaign to bring awareness to this problem, as too many 

people are unaware of its depth and breadth. In this chapter, 

we are covering a few of the essential federal laws that 

criminalize human trafficking in its various forms. In 
226

particular, we examine three main categories, Peonage, Forced 

Labor, and Sex Trafficking, of both adults and children. 

Because of the persistent nature of this problem, it is 

incumbent upon every law enforcement officer to be aware of 

what signs to look for and how it is addressed in the law.

14.2 Peonage - Title 18 U.S.C. § 1581 

There are two distinct ways in which the peonage statute may 

be violated: Direct action of holding or returning a person to 

such a condition or obstruction/interference in the enforcement 

of this law. The statutory penalties are the same, regardless of 

the manner in which this law is violated.

14.2.1 Elements of Peonage

a. Peonage: Direct Action

• Defendant holds or returns;

• Any person;

• In or to a condition of peonage.

b. Peonage: Obstruction/Interference in 

Enforcement

• Defendant obstructs, or attempts to obstruct, or in any 

way interferes with or prevents the enforcement of this 

section.

14.2.2 Definitions: Peonage / “Holds”

Peonage is a status or condition of compulsory service, based 

upon the indebtedness of the peon (person who owes a debt) to 

the holder of the debt. The core issue here is indebtedness; but 
227

peonage, however created, is compulsory service, involuntary 

servitude.

Under 18 U.S.C. § 1581, the term “holds” means the exercise 

of control by one individual over another so that the latter is 

coerced into laboring for the former. The use, or threatened 

use, of law or physical force is the most common method of 

forcing another to enter into or remain in a state of involuntary 

servitude. However, the means or method of coercion is not the 

determinative factor in deciding whether there is a holding.

Conduct other than the use, or threatened use, of law or 

physical force may, under some circumstances, have the same 

effect as the more traditional forms of coercion or may even be 

more coercive; such conduct, therefore, may violate the 

Thirteenth Amendment and this statute.

The crucial factor is whether a person intends to and does 

coerce an individual into his service by subjugating the will of 

the other person. A “holding” in involuntary servitude occurs 

when an individual coerces another into his service by 

improper or wrongful conduct that is intended to cause, and 

does cause, the other person to believe that he or she has no 

alternative but to perform the labor.

14.2.3 Punishments for Peonage

Offense Maximum 

Punishment 

Basic Violation/Obstruction 20 years confinement

If death results, or if the violation 

includes (actual or attempted) 

kidnapping, aggravated sexual 

abuse, or an attempt to kill

Life imprisonment

14.3 Forced Labor - Title 18 U.S.C. § 1589 
228

There are two distinct ways in which the forced labor statute 

may be violated – direct action (i.e. forcing someone to work 

against their will) or indirectly benefitting from such a 

venture. The statutory penalties are the same, regardless of 

the manner in which this law is violated.

14.3.1 Elements of Forced Labor

a. Forced Labor: Direct Action

• Defendant knowingly provided or obtained labor or 

services of a person by:

o Force and/or physical restraints;

o Threats of force and/or physical restraints;

o Abuse or threatened abuse of law or legal process; 

or

o Scheme, plan, or pattern intended to cause the 

person to believe that, if he/she did not perform 

such labor or services, that person or another 

person would suffer serious harm or physical 

restraint.

• Against that person and/or another person

b. Forced Labor: Indirectly Benefits

• Defendant knowingly benefits, financially or by 

receiving anything of value;

• From participation in a venture which has engaged in 

the providing or obtaining of labor or services by:
229

o Force and/or physical restraints;

o Threats of force and/or physical restraints;

o Abuse or threatened abuse of law or legal process; 

or

o Scheme, plan, or pattern intended to cause the 

person to believe that, if he/she did not perform 

such labor or services, that person or another 

person would suffer serious harm or physical 

restraint.

• Knowing or in reckless disregard of the fact that the 

venture has engaged in the providing or obtaining of 

labor or services by any of such means.

14.3.2 Definitions of Forced Labor

a. Abuse or Threatened Abuse of Law or Legal 

Process

The use or threatened use of a law or legal process, whether 

administrative, civil, or criminal, in any manner or for any 

purpose for which the law was not designed, in order to exert 

pressure on another person to cause that person to take some 

action or refrain from taking some action.

b. Serious Harm

Any harm, whether physical or nonphysical, including 

psychological, financial, or reputational harm, that is 

sufficiently serious, under all the surrounding circumstances, 

to compel a reasonable person of the same background and in 

the same circumstances, to perform or to continue performing 

labor or services in order to avoid incurring that harm.
230

14.3.3 Punishments for Forced Labor

Offense Maximum 

Punishment 

Basic Violation/Obstruction 20 years confinement

If death results, or if the violation 

includes (actual or attempted) 

kidnapping, aggravated sexual 

abuse, or an attempt to kill

Life imprisonment

14.4 Sex Trafficking - Title 18 U.S.C. § 1591 

There are two distinct ways in which the sex trafficking 

statute may be violated: direct action (i.e. actually committing 

the act of sex trafficking) or indirectly benefitting from such a 

venture. The statutory penalties are the same, regardless of 

the manner in which it is violated.

14.4.1 Four Classes of Victims of Sex Trafficking

There are four classes of victim based on age:

• 18 years of age or older

• Under 18 years of age

• 14 years of age but under 18

• Under 14 years of age

14.4.2 Elements of Sex Trafficking

Victims of sex trafficking may be adults or minors, those who 

are under the age of 18. For victims under the age of 18, 

coercion is not a required element of proof, but does enhance 

punishment.
231

a. Sex Trafficking: Direct Action – Victim 18 Years of 

Age or Older

• In or affecting interstate or foreign commerce, or within 

the special maritime and territorial jurisdiction (SMTJ) 

of the United States;

• The Defendant recruits, entices, harbors, transports, 

provides, obtains, advertises, maintains, patronizes, or 

solicits by any means;

• Any person 18 years of age or older;

• Using or knowing that force, threats of force, fraud, 

coercion, or any combination of such means will be used;

• To cause the victim to engage in a commercial sex act.

b. Sex Trafficking: Benefitting – Victim 18 Years of 

Age or Older

• In or affecting interstate or foreign commerce, or within 

SMTJ;

• The defendant benefits, financially or by receiving 

anything of value, from participation in a venture;

• Knowing, or in reckless disregard of the fact [except 

advertising] that force, threats of force, fraud, coercion, 

or any combination of such means will be used against;

• Any person;

• To cause the victim to engage in a commercial sex act.
232

c. Sex Trafficking: Victim Under 18 Years of Age

• In or affecting interstate or foreign commerce, or within 

SMTJ;

• The defendant recruits, entices, harbors, transports, 

provides, obtains, advertises, maintains, patronizes, or 

solicits by any means, or indirectly benefits from such a 

venture;

• Knowing, or in reckless disregard of the fact [except 

advertising], that the person has not attained the age of 

18 years;

• Any person under 18 years of age;

• To cause [victim] to engage in a commercial sex act.

14.4.3 Definitions of Sex Trafficking

a. Abuse or Threatened Abuse of Law or Legal 

Process

The use or threatened use of a law or legal process, whether 

administrative, civil, or criminal, in any manner or for any 

purpose for which the law was not designed, in order to exert 

pressure on another person to cause that person to take some 

action or refrain from taking some action.

b. Coercion

Threats of serious harm to or physical restraint against any 

person;

Any scheme, plan, or pattern intended to cause a person to 

believe that failure to perform an act would result in serious 

harm to or physical restraint against any person; or
233

The abuse or threatened abuse of law or the legal process.

c. Commercial Sex Act

Any sex act, on account of which anything of value is given to 

or received by any person.

d. Serious Harm

 

Any harm, whether physical or nonphysical, including 

psychological, financial, or reputational harm that is 

sufficiently serious, under all the surrounding circumstances, 

to compel a reasonable person of the same background and in 

the same circumstances to perform or to continue performing 

commercial sexual acts in order to avoid incurring that harm.

 

e. Venture

 

Any group of two or more individuals associated in fact, 

whether or not a legal entity. 

14.4.4 Punishments

For victims under the age of 18, coercion is not a required 

element of proof, but does enhance punishment.

Age 10 years

to life

15 years

to life

18 or older (coerced) X

14 or older but under 18

(coerced)

X

14 or older but under 18 (not 

coerced)

X

Under 14 (coercion not 

required)

X
234
235

Chapter 15 - 

 

Electronic Law and Evidence 

15.1 Introduction ............................................................. 236

15.2 Wiretapping and Title III ........................................ 237

15.2.1 When a Title III Court Order is Required.............239

15.2.2 How to Obtain a Title III Court Order ..................241

15.2.3 Interceptions Exempted from Title III ..................247

15.3 Electronic Tracking Devices: Applicable Law ......... 252

15.3.1 The “Trespass” Definition of Search......................253

15.3.2 The “Privacy” Definition of Search........................255

15.3.3 Installation of an Electronic Tracking Device ......255

15.3.4 Monitoring of an Electronic Tracking Device .......257

15.3.5 United States v. Jones Concurring Opinions and 

Carpenter ...............................................................................259

15.3.6 Tracking Mobile Telephones ..................................262

15.4 Pen Registers and Trap and Trace Devices ............. 263

15.4.1 Definitions and Purposes .......................................263

15.4.2 Applicable Federal Statutes...................................264

15.4.3 Obtaining a Court Order........................................264

15.5 Video-Only Surveillance in an Area With REP ....... 265

15.6 Stored Electronic Communications ......................... 267

15.6.1 Classifying the Information Being Sought............268

15.6.2 Obtaining Stored Electronic Communications .....270

15.6.3 Preservation Letters...............................................271

15.6.4 Multi-Jurisdiction Warrants..................................272

15.7 Searching Computers Without a Warrant .............. 273

15.7.1 Private Searches .....................................................273

15.7.2 REP in Computers..................................................274

15.7.3 Losing REP in Computers......................................275

15.7.4 Exceptions to the Warrant Requirement ..............276
236

15.8 Preparing Search Warrants for Computers ............ 285

15.8.1 The Need for Pre-Search Information...................286

15.8.2 The Particularity Requirement .............................287

15.8.3 Justifying Off-Site Searches ..................................289

15.8.4 Identifying the Need for Multiple Warrants.........291

15.9 Executing Search Warrants for Computers ............ 292

15.9.1 Technical Assistance During Execution................292

15.9.2 Knock and Announce..............................................293

15.9.3 Time Frames For Searching Computers ...............296

15.10 Authentication of Electronic Data ........................... 297

_______________________________________________________

15.1 Introduction 

Technology, such as cell phones and computers, is part of 

modern daily life, so it is natural to expect that technology will 

be a necessary part of a criminal investigation. This chapter 

gives a basic overview of federal laws regarding intercepting 

communications, tracking movements of a person or object, 

tracing communications, obtaining electronically stored data, 

and using video-only surveillance.

This chapter will not cover state law regarding electronic 

surveillance. While state and local law enforcement must, at a 

minimum, provide the same individual protections as the U.S. 

Constitution regarding electronic surveillance, each state is 

free to make its own wiretapping statutes. This chapter will 

also not cover the Foreign Intelligence Surveillance Act (FISA) 

which addresses the use of wiretaps and searches in 

connection with foreign intelligence investigations.
237

15.2 Wiretapping and Title III 

Before 1934, no federal statute specifically regulated 

wiretapping. In 1928, the Supreme Court held in Olmstead v. 

United States, 277 U.S. 438 (1928), agents who tapped a 

suspect’s phone lines from a location off the suspect’s premises, 

even without his consent or a search warrant, did not violate 

the Fourth Amendment. The Court based its decision upon a 

finding that the agents committed no trespass upon 

Olmstead’s person, house, papers or effects, and, hence, did not 

“search” within the confines of the Fourth Amendment. 

The Court noted, however, that Congress could regulate 

wiretapping if it so desired. Six years after Olmstead, 

Congress passed the Federal Communications Act of 1934 

(FCA) which prohibited wiretapping by any person, including 

federal law enforcement officers, without a warrant. However, 

the FCA still permitted federal law enforcement officers to use 

eavesdropping techniques in law enforcement operations. 

In 1967, nearly 40 years after Olmstead, the Supreme Court 

took on the eavesdropping issue in the landmark case of Katz 

v. United States, 389 U.S. 347 (1967). Before Katz, the 

Supreme Court held on to a very literal reading of the Fourth 

Amendment, focusing on property rights (a person’s physical 

body, houses, papers and effects, personal property). The 

Fourth Amendment still protects property rights, but Katz

changed the focus of Fourth Amendment analysis from one 

based on property rights to one based on individual privacy 

rights. In Katz, the defendant was a “handicapper” making 

most of his money with college football illegal gambling. 

(Handicappers assign advantages or odds through scoring 

compensation for illegal betting.) As part of his empire, he used 

a public telephone located in a group of telephone booths on a 

public street on Sunset Boulevard, in Los Angeles, CA to 

“transmit wagering information across state lines” (giving the 

odds to his bookkeepers). To monitor these conversations, 
238

federal law enforcement officers placed a sensitive microphone 

on top of the telephone booth that recorded what Mr. Katz was 

saying. Because they had not intruded onto the defendant’s 

property or person when installing and utilizing this device, 

the officers had complied with Olmstead. Additionally, they 

did not violate the FCA given that they had not tapped the 

telephone line. Nevertheless, the Supreme Court held the 

Fourth Amendment was violated. Creating a new “Reasonable 

Expectation of Privacy” (REP) standard, the Court stated Katz 

had manifested a subjective REP in his use of a phone booth to 

make his calls, and further, that the officers had intruded upon 

that REP. The court held Mr. Katz’s subjective REP was 

objectively reasonable, thus evoking Fourth Amendment 

protections. Therefore, the warrantless recording of his 

conversations violated the Fourth Amendment. 

Congress’s response to the Supreme Court’s decision in Katz 

came in 1968 in the form of the Omnibus Safe Streets and 

Crime Control Act (found at 18 U.S.C. § 2510, et seq). Title III 

of that Act regulated the manner in which law enforcement 

officers may lawfully conduct real-time interceptions of wire 

and oral communications. (When Congress passed the 

Omnibus Crime Control and Safe Streets Act, these provisions 

were in Title III of the Act. Subsequently, these provisions 

were moved to another section, however this body of law is still 

referred to as “Title III” or “T III.”) The purpose of Title III was 

twofold: first, to protect the privacy of wire and oral 

communications; and second, to set forth, on a uniform basis, 

the circumstances and conditions under which the interception 

of wire and oral communications may be authorized. Under 

Title III, officers may use evidence obtained through electronic 

surveillance if they first obtain a court order authorized under 

the statute. 

In 1968, when Congress enacted Title III, many of the 

technologies which are commonplace today did not exist. 

Congress eventually extended privacy protections to more 
239

modern, advanced technologies when it passed the Electronic 

Communications Privacy Act of 1986 (ECPA). In the ECPA, 

Congress added “electronic communications” as a third 

category of communications to have its interception regulated 

by Title III. Where Title III had been limited to voice 

communications, whether face-to-face or over a wire, the 

ECPA extended Title III to include non-verbal 

communications such as text messages and chat messages that 

occur over computers, facsimile machines, cellular telephones, 

and other electronic devices.

15.2.1 When a Title III Court Order is Required

Title 18, United States Code, Section 2510 et seq., often 

referenced as “Title III” or “T III,” prohibits the warrantless 

non-consensual interception of live (real time) wire or 

electronic communications, as well as the interception of live 

oral communications in which one or more of the participants 

in such communications has a REP. Such intercepts may be 

lawfully done only with a Title III court order.

To obtain an order allowing real time intercepts of oral, wire, 

or electronic communications, it is necessary to satisfy the 

procedural and substantive requirements set forth in Title III. 

It is important to correctly understand the definitions of 

several terms used in the statute:

• Oral communications: Those spoken by a person who 

exhibits an expectation of privacy when speaking. Oral 

communication means directly from the speaker to the 

listener’s ear.

• Wire communications: The transfer of the human voice 

via a wire, cable, or “other like connection” even if there 

is no REP. An example of a wire communication would 

be the digitized human voice transmitted over a phone 

line, network, video teleconference, the Internet, or 
240

other similar medium.

• Electronic communication: The transfer of any other 

communication and/or data via a wire, cable, or “other 

like connection” even if there is no REP. Text messages, 

e-mail and facsimile transmissions are examples of such 

data that are transferred by way of an electronic 

communication.

Unlike oral communications, the definitions of electronic and

wire communications do not require that someone has REP in 

the communication. The omission of this component from the 

definitions was intentional as Congress realized that by their 

nature, wire and electronic communications had to be revealed 

to third parties to transmit them, yet Congress still intended 

to afford these communications some protection from 

unwarranted intrusions.

The Courts have interpreted the term “interception” to mean 

a real time interception. Thus, Title III would be applicable to 

wire and electronic communications only if the interception of 

such communications occurs during the “live” or “real-time” 

transmission of the communication. As to oral 

communications, there is no interception unless done with a 

“device” while the communication is being made. A device is 

anything other than the human ear.

The general rule is that Title III does not apply to any oral 

communications overheard with the unaided human ear while 

the listener is in a place where he or she has the right to be. 

(Hearings aids set to correct subnormal hearing to normal are 

excluded from the definition of “device.”)

Another exception to the application of Title III to intercepted 

communications is where at least one party to the 

communication has consented to the interception. This 
241

exception applies regardless of whether the intercepted 

communication is oral, by wire, or electronic.

15.2.2 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 May Apply for a Title III Court Order?

Any “investigative or law enforcement officer” may apply for a 

Title III court order. This phrase is defined as “any officer of 

the United States ... who is empowered by law to conduct 

investigations of or to make arrests for, offenses enumerated 

in this chapter, and any attorney authorized by law to 

prosecute or participate in the prosecution of such offenses.” 

18 U.S.C. § 2510(7).

b. Enumerated Crimes Requirement?

Depending on the type of intercept being requested, Title III 

may require, as a predicate, the government demonstrate 

probable cause to believe one of the crimes listed in 18 U.S.C. 

§ 2516 has been violated.

1. Wire or Oral Communications

To intercept wire or oral communications, officers must have 

probable cause to believe that one of the predicate offenses 

specifically listed in Title 18 U.S.C. § 2516(1) is being 

committed. As a practical matter, most significant felony 

crimes are listed.
242

2. Electronic Communications

When an officer seeks to intercept electronic communications, 

he or she must have probable cause of any federal felony being 

committed. 18 U.S.C. § 2516(3).

c. Authorization to Apply for a Title III Court Order

Before an officer submits an application for a Title III court 

order to the appropriate judge, the application should first be 

reviewed and approved by the United States Attorney in the 

district where the intercept will occur. (Department of Justice 

policies require an AUSA review for all Title III applications.) 

Final approval of the application must come from an 

appropriate Department of Justice official designated by the 

U.S. Attorney General. Usually, that will be the Assistant 

Attorney General or the Deputy Assistant Attorney General 

for the Criminal Division.

1. Wire or Oral Communications

Under 18 U.S.C. § 2516(1), the designated Department of 

Justice official must first review and authorize any application 

requesting permission to intercept wire or oral 

communications without the consent of one or more parties to 

the conversation. This requirement is to ensure this powerful 

investigative tool is used with restraint and only where the 

circumstances warrant it.

2. Electronic Communications

Under 18 U.S.C. § 2516(3), any government attorney may 

authorize a Title III application to intercept electronic 

communications in the investigation of any federal felony. 

Under Department of Justice policy, however, the approval of 

the Assistant Attorney General (or the Deputy AAG) for its 

Criminal Division is required before a criminal investigator 
243

may apply to a judge to intercept other electronic 

communications over any other device, such as computers and 

facsimile machines. For a Title III of a digital pager, however, 

only the approval of an AUSA is required.

d. Contents of the Application

Under 18 U.S.C. § 2518, each application for a Title III court 

order must contain specific information before a court may 

authorize the interception. In addition to being in writing, 

under oath, and signed by either the United States Attorney 

or an Assistant United States Attorney, the application must 

contain the following:

1. Identity

The application must contain the identity of the investigative 

or law enforcement officer making the application, as well as 

the DOJ official who authorized it. 18 U.S.C. § 2518(1)(a).

2. Statement of Facts and Circumstances

Title 18 U.S.C. § 2518(1)(b) requires a full and complete 

statement by the applicant of the facts and circumstances 

relied upon to justify the applicant’s belief a Title III court 

order should be issued. The applicant’s statement must 

demonstrate probable cause that the evidence sought will be 

obtained through the use of the proposed surveillance. 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;
244

• 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 a Title III application 

identify (1) the names of all individuals as to whom the 

government’s evidence shows probable cause they are 

engaged in the criminal activity under investigation and 

(2) whose conversations the government expects to 

intercept. Additionally, it is the policy of the Department 

of Justice to “name as potential subjects all persons 

whose involvement in the alleged offenses is indicated.” 

Justice Manual, Chapter 9, Criminal Resources Manual 

at 28.

3. Necessity Statement

Under 18 U.S.C. § 2518(1)(c), a Title III application must 

contain a full and complete statement as to whether other 

investigative procedures have been tried and failed or why 

they reasonably appear to be unlikely to succeed if tried or 

would be too dangerous. This section is sometimes referred to 

as the “necessity statement” and means the interception must 

be shown to be necessary to the investigation of the case. This 

section was designed to assure wiretapping is not conducted 

where traditional investigative techniques would suffice to 

expose the crime under investigation. It is not necessary, 

however, that the Government attempt or exhaust all 

conceivable investigative techniques before resorting to 

electronic surveillance. The statute only requires the 

authorizing judicial officer be made aware of the nature and 

progress of the investigation and of the difficulties inherent in 

the use of normal law enforcement methods in that 

investigation.
245

4. Time Period

The application must contain a statement of the period of time

for the wiretap. 18 U.S.C. § 2518(1)(d). Under 18 U.S.C. § 

2518(5), Title III court orders are valid only for the period 

necessary to achieve the objective of the authorization, but in 

no event longer than 30 days. This 30-day period begins on the 

earlier of either (1) the day on which the investigative or law 

enforcement officer begins to conduct an interception under 

the order, or (2) ten days after the order is issued, whichever 

occurs first. This 10-day period is intended primarily for the 

installation of whatever device will be used to conduct the 

interceptions. Extensions of the 30-day period are permissible, 

but only after again meeting the requirements of the initial 

Title III application. Further, where the Title III application is 

for an extension of a previously approved order, the application 

“must include a statement setting forth the results thus far 

obtained from the interception, or a reasonable explanation of 

the failure to obtain such results.” 18 U.S.C. § 2518(1)(f).

5. Statement Regarding Previous Applications

Under 18 U.S.C. § 2518(1)(e), a Title III application must also 

contain a full and complete statement of the facts surrounding 

all previous Title III applications known to the individual 

authorizing and making the application that involved any of 

the same persons, facilities, or places specified in the 

application, and the action taken by the judge on each of these 

previous applications. Such information is recorded in 

electronic surveillance indexes maintained by Department of 

Justice and its law enforcement agencies and may be accessed 

by an appropriate representative of an agency for use in a Title 

III application. (This is commonly referred to as an ELSUR 

check, and it is one of the last things a law enforcement officer 

does before submitting the affidavit.)
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6. Minimization Statement 

A Title III application should also contain a statement that the 

surveillance, if approved, will be “conducted in such a way as 

to minimize the interception of communications not otherwise 

subject to interception.” 18 U.S.C. § 2518(5). In determining 

compliance with this requirement, courts look to the “totality 

of the circumstances” to see if the minimization effort was 

reasonable. 

 

Among the factors the courts have considered in determining 

whether the minimization efforts are reasonable are: (1) the 

nature and complexity of the suspected crimes; (2) the number 

of target individuals; (3) the ambiguity of the intercepted 

conversations; (4) the thoroughness of the government 

precautions to bring about minimization; and (5) the degree of 

judicial supervision over the surveillance practices. Where the 

government fails to adequately minimize the electronic 

surveillance, any evidence obtained from those impermissible 

intercepts may be suppressed; however, errors in minimizing 

one portion of an interception do not automatically result in 

the suppression of all the evidence obtained through the use of 

electronic surveillance. Instead, suppression of all electronic 

surveillance is proper only where the defendant demonstrates 

the entire surveillance was tainted by the impermissible 

intercepts. See Florida v. Kraft, 2019MM002346AXXX (Palm 

Beach Co, FL, 2019) (Order Re: Defendant’s Motion to 

Suppress). 

7. Request for Covert Entry

The Department of Justice requires Title III applications 

specifically contain a request for permission to surreptitiously 

enter to install, maintain, and remove electronic surveillance 

devices. Justice Manual, Chapter 9, Criminal Resources 

Manual at 28. Note the Supreme Court has held a Title III 

application does not have to contain a specific request for 
247

permission to covertly enter a location to install, maintain, and 

remove surveillance devices because “[t]hose considering the 

surveillance legislation (I.e., Congress) understood that, by 

authorizing electronic interception of oral communications in 

addition to wire communications, they were necessarily 

authorizing surreptitious entries.” Dalia v. United States, 441 

U.S. 238 (1979). Nevertheless, Department of Justice policy 

requires that a Title III application include a request for covert 

entry. 

e. Who May Issue a Title III Court Order? 

A Title III order may only be issued by a United States District 

Court Judge or a United States Circuit Court of Appeals 

Judge. 18 U.S.C. § 2510(9). United States Magistrate Judges 

are not authorized to issue a Title III order. 

15.2.3 Interceptions Exempted from Title III 

Not all interceptions of wire, oral, or electronic 

communications require a Title III court order. Two of the most 

important exemptions to the requirements of Title III involve 

situations where (1) no REP exists in an oral communication, 

and (2) at least one of the parties to the conversation has given 

consent to intercept the communication (sometimes referenced 

as “consensual monitoring”). 

a. No Reasonable Expectation of Privacy 

In Katz, the Supreme Court established the standard for 

determining whether a REP exists. The test is two-pronged: 

first, the individual must have exhibited an actual (subjective) 

expectation of privacy. Second, that expectation must be one 

that society is prepared to recognize as objectively reasonable. 

If either prong fails, then no REP exists. An “oral 

communication” is defined in 18 U.S.C. § 2510(2) as one 

“uttered by a person exhibiting an expectation of privacy that 
248

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 REP in a conversation that can 

be overheard from a location where the interceptor has a legal 

right to be and where the interceptor uses only his or her 

unaided ear. As noted by the Supreme Court in Katz, 

“[C]onversations in the open would not be protected against 

being overheard, for the expectation of privacy under the 

circumstances would be unreasonable.” Accordingly, if two 

individuals have a conversation in a public restaurant and 

speak loudly enough for others in the restaurant to overhear 

their conversation, they would have no REP as to their 

conversation. On the other hand, there would be a reasonable 

expectation of privacy if two individuals were talking quietly 

in a hotel room and their conversation could not be heard from 

outside the room. 

Finally, even though a speaker may subjectively intend for his 

conversation to remain private, that speaker has no objectively 

reasonable expectation the person to whom he is speaking will 

not later reveal the contents of the conversation. There is only 

a reasonable expectation of privacy as long as both parties 

expect it. If, however, one party to the conversation decides to 

reveal the contents of the conversation, the other party has no 

“right to privacy” preventing its disclosure. So, if an individual 

engages in conversation with another, the individual does so 

at his own peril. An expectation of privacy does not attach to a 

“wrongdoer’s misplaced belief that a person to whom he 

voluntarily confides his wrongdoing will not reveal it. The risk 

of being overheard by an eavesdropper or betrayed by an 

informer or deceived as to the identity of one with whom one 

deals is probably inherent in the conditions of human society.” 

Hoffa v. United States, 385 U.S. 293 (1966).
249

This requirement of an expectation of privacy only applies to

oral communications. As stated earlier, the statute does not 

include the requirement of a demonstrated reasonable 

expectation of privacy for wire and electronic communications 

to be subject to Title III. Congress intended to prohibit 

the non-consensual interception of wire and electronic 

communications regardless of the communicating parties’ 

expectation of privacy. See Justice 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.” Justice Manual, Chapter 9-7.301. The 

consent must be given voluntarily, without physical coercion 

or duress. The Attorney General established guidelines for the 

investigative use of consensual monitoring by law enforcement 

agencies within the Executive Branch. The most recent 

version of these guidelines were promulgated by the Attorney 

General on May 30, 2002, and are set forth in the Justice 

Manual, Chapter 9-7.302 (Revised 2020). The following is a 

general summary of those guidelines. Law enforcement 

officers must become familiar, however, with the particular 

requirements of their agency regarding this issue.

1. Written Approval Required in Certain Cases

In certain sensitive or high-visibility cases, the Department of 

Justice requires written approval before an oral 

communication can be monitored without the consent of all 

parties to the communication. This requirement would apply, 

for example, when the monitoring relates to the investigation 

of a congressman, federal judge, governor or lieutenant 

governor of a state or territory, etc. This requirement includes 

persons who served in that capacity two years prior.
250

2. Prior AUSA Advice to Monitor Conversations

Current Department of Justice policy requires that, prior to 

approval of any consensual face-to-face monitoring by the head 

of a department or agency or his or her designee, a designated 

representative of that department or agency must obtain oral 

or written advice from the Assistant U.S. Attorney or 

Department of Justice attorney responsible for that particular 

investigation. Such contact, consent, advice, or approval is not 

required prior to the consensual monitoring of telephone or 

radio communications.

c. Special Limitations on Consensual Monitoring

Questions often arise during consensual monitoring 

concerning where the monitoring device may be located and 

when that device may be property monitored. Some general 

discussion of these issues is outlined in the Justice 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 of the consenting party, 

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.

1. Device Located on the Person

Officers may place the monitoring device on the consenting 

person. If the monitoring device is so placed, the party (be it 

an undercover agent or confidential informant) may record any 

conversations that he has with the suspect.
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2. Device in a Fixed Location

It is not legally required that a monitoring device be placed on 

the consenting person. In many instances, it may be more 

tactically advisable to place the device in a specified location, 

for example, a hotel room where a confidential informant and 

the suspect are to meet.

When the device is placed in a fixed location, officers need to 

consider two important issues. First, does the government 

need to obtain a warrant for the installation of the device? 

When a confidential informant rents a hotel room and consents 

to having the device placed in the room, no warrant would be 

required for the installation. On the other hand, if the 

operational plan is to install the device within the REP of a 

non-consenting person, the government will need a court order 

to do so.

Second, will the consenting party be absent at any time when 

the officers will be monitoring the device? If a consenting party 

is present when conversations are intercepted with that 

device, no further order is necessary. If the government 

intercepts a non- consenting person’s statements made in the 

absence of a consenting party, however, that would require a 

Title III order.

d. Electronic Communications Exempt from Title III

Though ECPA extended Title III protections to “electronic 

communications,” certain types of communications were 

specifically excluded from this protection. Accordingly, a Title 

III court order is not required to intercept the following types 

of electronic communications:

• Tone-Only Pagers. 18 U.S.C. § 2510(12)(B).

• Tracking Devices, Beepers and Transponders. 18 U.S.C. 
252

§ 2510 (12)(C). Tracking devices are defined in 18 U.S.C. 

§ 3117 and include GPS devices.

• Video-Only Surveillance. The use of video-only 

surveillance is not regulated by Title III, but is regulated 

by the Fourth Amendment.

• General Public Communications. General public 

communications that are easily received by the public, 

such as AM/FM radio station broadcasts, and citizen 

band radio transmissions.

15.3 Electronic Tracking Devices: Applicable Law 

Title 18 U.S.C. § 3117 regulates the use of “electronic or 

mechanical device[s] which permit the tracking of the 

movement of a person or object.” Electronic tracking devices 

serve an important law enforcement function by allowing law 

enforcement officers to track and monitor the movements of 

suspects or objects from a distance, thereby reducing the 

possibility of detection. Three of the most commonly used 

tracking devices are “beepers,” “transponders,” and GPS 

devices. A “beeper” is a radio transmitter which emits periodic 

signals that can be picked up by radio receiver. Similar to a 

beeper in many respects, a “transponder” is most often used to 

track the location of aircraft.

As Congress specifically excluded electronic tracking devices 

from Title III, the Fourth Amendment regulates their 

installation and monitoring. Accordingly, in order to 

determine if a warrant will be required to either install or 

monitor a tracking device, a Fourth Amendment analysis is 

needed. Hence, a law enforcement officer must first determine 

whether the installation or monitoring of a tracking device 

constitutes a “search” under the Fourth Amendment.
253

In 2012, the Supreme Court issued a landmark decision 

redefining what constitutes a “search” under the Fourth 

Amendment. In United States v. Jones, 565 U.S. 400 (2012), 

the Supreme Court retained the Katz definition of a search 

(with its focus on “privacy”), but also reinstated the traditional 

definition of a search based on a trespass to a specifically 

enumerated area of Constitutional protection (persons, 

houses, papers, and effects). The Supreme Court held agents 

are required to obtain a Fourth Amendment warrant before 

installing an electronic tracking device onto a suspect’s 

vehicle. While this case is more fully discussed in the Fourth 

Amendment chapter, it is important to mention here because 

of the significant impact it had on the installation and 

monitoring of tracking devices. 

15.3.1 The “Trespass” Definition of Search 

As a result of Jones, there are two ways for government action 

to trigger a “search” under the Fourth Amendment. The Katz 

definition of search is still valid, so a government intrusion 

into an area where a person has REP for the purpose of 

gathering information is a search. But the Court in Jones also 

added a companion definition for a Fourth Amendment 

“search,” when there is a physical intrusion by the government 

into a “constitutionally protected area” for the purpose of 

gathering information. The constitutionally protected areas 

are “persons, houses, paper, and effects." 

Applying this new definition of a Fourth Amendment search 

significantly changes the calculus for the installation and 

monitoring of tracking devices. If the Fourth Amendment is 

triggered in either the installation or monitoring of a tracking 

device (or both), then a warrant or a recognized exception is 

required. 

In order for the installation of a tracking device to constitute a 

Jones search, it must have been installed with the intent to be 
254

monitored. This is because Jones required both a physical 

trespass coupled with the purpose of gathering information. 

These circumstances are almost always a given with trackers. 

Under a Jones search analysis as applied to GPS tracking 

devices on vehicles, the installation is where the physical 

intrusion takes place and the monitoring provides the 

requisite intent to gather information. 

In determining whether the installation of the tracking device

constitutes a physical intrusion into a constitutionally 

protected area, there are two questions that must be answered. 

First, is the area intruded upon a person, house, paper, or 

effect? In other words, is it a constitutionally protected area as 

set out in the Fourth Amendment? If the answer is “no,” then 

there is no Jones search under the calculus. If the answer is 

“yes,” then the officer must answer the second question: Does 

the person who is raising the issue have “possession” of the 

object to which the tracking device was affixed at the time it 

was affixed? 

In order to satisfy the physical intrusion requirement under 

Jones, the physical occupation of the private property must 

take place at a time after the complainant has acquired a 

possessory right in the property. If the tracking device is 

affixed to a constitutionally protected effect like an automobile 

before the complainant takes possession of the object, then 

there is no requisite physical intrusion under the Jones 

analysis, which means it will not constitute a “search” under 

this analysis. 

For example, assume there is a confidential informant named 

Bob and Bob owns a nice car that is often admired by Tim. 

Federal agents believe Tim is involved in activity that violates 

federal criminal law and they want to track him. The federal 

agents get Bob’s consent to install a tracking device in Bob’s 

car, and Bob agrees to loan his car to Tim without telling Tim 

the tracking device is in the car. This would not constitute a 
255

Jones search since the installation occurred before Tim 

acquired a possessory right to the vehicle. 

In the example above, there was no search under the Jones 

trespass theory because the physical intrusion occurred before 

the suspect (Tim) acquired the right to possess the vehicle. 

However, the “privacy” rule of Katz still applies to the tracking 

of the vehicle. 

15.3.2 The “Privacy” Definition of Search 

The Supreme Court made it clear in Jones the trespass 

definition of search supplemented the existing definition of a 

search under Katz. Therefore, even if the installation and 

monitoring of a tracking device does not constitute a Jones 

search under the “trespass” analysis, it may nonetheless 

trigger Fourth Amendment protection if either the installation 

or the monitoring constitutes a Katz search. 

In Katz, the Supreme Court defined a search as a government 

intrusion into an area where a person has a reasonable 

expectation of privacy (REP). Under the Katz definition of 

search, either the installation or the monitoring of a tracking 

device can trigger a Fourth Amendment protection. 

Accordingly, when applying the Katz analysis to determine if 

a warrant is required, the officer must do a separate REP 

analysis for both the installation and the monitoring of the 

tracking device.

15.3.3 Installation of an Electronic Tracking Device 

In deciding whether an electronic tracking device was legally 

installed, the courts utilize a Fourth Amendment analysis 

focusing on whether installation of the device constitutes a 

search. Hence, under Katz, the law enforcement officer must 

ask if there is an intrusion into a protected REP area during 

the installation. If there is, the officer must have a warrant or 
256

a recognized warrant exception; if not, no warrant is required 

under the Katz analysis. As explained above, there are two 

ways to have a “search” under the Fourth Amendment: 

a. Vehicles 

When determining whether the installation of a tracking 

device under Katz triggers Fourth Amendment protection, the 

first question is: Did the installation occur while the suspect 

had a possessory right to the vehicle? If the installation occurs 

before the suspect acquires the right to use the vehicle, the 

suspect had no REP in the vehicle and no warrant is required 

for the installation under the Katz analysis. If the installation 

of the tracking device occurs after the suspect acquires the 

right to use the vehicle, then there is a REP, and a warrant or 

recognized warrant exception would be required for the 

installation. 

The physical intrusion (installation of the tracking device) into 

the constitutionally protected REP area (the vehicle) must be 

coupled with purpose of gathering information (actually 

monitoring the movement of the vehicle) in order to trigger 

Fourth Amendment protection. In other words, the 

installation of a tracking device alone does not necessarily 

constitute a Katz search. 

b. Other Types of Property 

The same two search analyses apply to installing tracking 

devices on other types of property as well. First, is there a 

physical intrusion by the government into a constitutionally 

protected area for the purpose of gathering information? 

Second, is there a government intrusion into an area where a 

person has a reasonable expectation of privacy for the purpose 

of gathering information? If the answer is “yes” to either 

question, then the government action is a “search” under the 
257

Fourth Amendment and the law enforcement officer must 

obtain a warrant. 

As with a vehicle, in order for installation of any tracking 

device to constitute a search under the “trespass” rule in Jones, 

there must be both a physical intrusion (installation) into a 

constitutionally protected area (persons, houses, papers, and 

effects) and intent to gather information (monitoring of the 

tracking device). The installation of a tracking device into one 

of these areas alone will not constitute a search. The 

installation must be combined with the gathering of 

information in order to constitute a search. 

Again, the physical intrusion must occur while the suspect has 

a right of possession in the object being tracked. If the 

installation of the tracking device occurs before the subject 

acquires a possessory interest or REP in the property, then 

there is no physical intrusion under the Jones or Katz analysis 

and, accordingly, there is no warrant required. 

15.3.4 Monitoring of an Electronic Tracking Device

As explained in the preceding section, it is possible to have a 

situation in which a warrant was not needed to install a 

tracking device. This can occur in either a Jones search or a 

Katz search. 

 

In a Jones search, where the tracking device is installed on an 

“effect” and is then monitored, the law enforcement officer will 

need to obtain a warrant for both the installation and 

monitoring of the tracking device. In a Jones search, the 

installation and monitoring issues are not separate because it 

takes both to constitute a search under the Jones “trespass” 

theory. 

If the installation of the device occurs before the suspect 

acquires a possessory interest in the item being tracked, then 
258

the Jones search analysis is not applicable. But the Fourth 

Amendment could still be triggered under Katz as a result of 

the subsequent monitoring of the whereabouts of the object. In 

this type of situation, the rule in Katz is applicable. If a person 

has a reasonable expectation of privacy from observation in the 

area in which the object is being tracked, then a warrant will 

be required to track the object. If there is no REP in the area 

in which the object is being tracked, then no warrant will be 

required. 

a. Areas with No REP 

When an electronic tracking device is located in an area where 

there is no REP, Fourth Amendment protections are usually 

not triggered in the monitoring. For example, if a device is 

lawfully installed onto a vehicle, an officer may monitor the 

device while the vehicle is traveling on public streets and 

highways. In these sort of cases, a defendant’s movements are 

open to visual surveillance by anyone who wishes to look, 

including the government. For this reason, a defendant has no 

reasonable expectation that his movements on a public 

thoroughfare will not be observed. United States v. Knotts, 460 

U.S. 276 (1983). 

This rule from Knotts, while technically still good law, is 

subject to ongoing dispute. The Supreme Court held in 

Carpenter v. United States, 138 S.Ct. 2206 (2018), that a 

person can, in fact, have a REP in the “whole of his physical 

movements,” regardless whether such movement was in public 

or private. This case will be discussed in more detail below, but 

for now it will suffice to state tracking an individual for seven 

days or more may in fact suggest REP and trigger the Fourth 

Amendment. The total amount of days a person is tracked is 

being considered a factor in evaluating REP. 
259

b. Areas with REP 

In contrast, when an electronic tracking device is located in an 

area not open to visual surveillance and where a reasonable 

expectation of privacy exists, such as inside a home, the Fourth 

Amendment protections apply 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 an officer 

may observe the object to which the beeper is attached enter a 

home, the later monitoring of the device in the home not only 

verifies the officer’s observations, but also establishes 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 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. United States v. Karo, 

468 U.S. 705 (1984).

15.3.5 United States v. Jones Concurring Opinions and 

Carpenter 

Even though this section accurately reflects the current state 

of the law regarding tracking under the Katz analysis, it is 

important to note the uncertain future of 24/7 tracking of a 

suspect for an extended period of time without a warrant. 

In the concurring opinion of Jones written by Justice Alito (in 

which three other Justices joined), Justice Alito would have 

held the actions of the government in Jones to be a search 

because the extended 24/7 tracking violated Jones’s REP in 

such extended monitoring. In other words, four of the nine 
260

Justices believed that at some point a person develops REP in 

their movement in public places when they are being 

continuously tracked. Although Justice Alito did not state 

exactly when this line would be crossed and a warrant would 

be required, he stated that the line “was surely crossed before 

the 4-week mark.” Again, this was the minority opinion and 

therefore did not establish a rule of law. 

However, in a second concurring opinion, Justice Sotomayor 

extolled the virtues of Justice Alito’s analysis before adopting 

Justice Scalia’s majority opinion. In her concurring opinion, 

Justice Sotomayor made it very clear if a case that involved 

extended 24/7 tracking being decided under Katz was 

presented to her, she would most likely adopt Justice Alito’s 

analysis. 

This case presented itself to the Court in Carpenter v. United 

States. A majority of the Supreme Court cited to these Jones 

concurrences in holding the continuous tracking of the 

movements of a suspect for seven (7) days required a search 

warrant. In that case, Carpenter was tracked by his cell phone 

and the use of Cell Site Location Information (CSLI). The 

Court determined individuals have a “reasonable expectation 

of privacy in the whole of their physical movements,” and 

continuous monitoring, even in public locations, even by third 

parties, constitutes a search under the Fourth Amendment 

which requires a warrant or a recognized warrant exception. 

Unfortunately, the Court did not address the magic line as to 

when exactly a person develops REP in the “whole of physical 

movements.” Hence, it is possible that even continuous 

tracking for six (6) or less days may trigger the Fourth 

Amendment. Therefore, for the time being, it is likely LEOs 

will be asked to secure a warrant much more often than 

previously until this new rule is more settled. (Even 

Department of Justice guidelines have urged when probable 
261

cause can be established, get a warrant to obtain any amount 

of CSLI.)

a. Warrants for Tracking Devices

There is a process for obtaining warrants to install and 

monitor a tracking device. Rule 41 of the Federal Rules of 

Criminal Procedure (F.R.Cr.P.) provides process to obtain a 

tracking warrant. Specifically, F.R.Cr.P. 41(e)(2)(B) and 

41(f)(2) address warrants for tracking devices.

Generally, F.R.Cr.P. 41 states:

A magistrate judge in the district where the device will be 

installed may issue a warrant to install a tracking device. The 

issuing magistrate judge may authorize tracking in the district 

where the device will be installed, another district, or both, 

and the warrant must contain the following:

• Identity of the person or property to be tracked.

• Identity of the magistrate judge to whom the return on 

the warrant will be made.

• A reasonable period of time that the device may be used. 

(The time will not exceed 45 days. Extensions for not 

more than 45 days may be granted for good cause 

shown.)

• A command that the device be installed within 10 days 

or less from the time the warrant is issued, and during 

the daytime, unless the magistrate for good cause shown 

authorizes another time.

• A command there shall be a return on the warrant.
262

The officer executing the warrant must make the return to the 

magistrate judge specified in the warrant. The return must 

contain the exact dates and times of both the installing of the 

device and the period in which it was used. The return must 

be served on the person who was tracked, or whose property 

was tracked, within ten days after use of the device has ended. 

Upon request of the government, the magistrate judge may 

delay providing the notice required by the return. 

15.3.6 Tracking Mobile Telephones 

In recent years, advances in technology have made it possible 

to “track” the approximate location of anyone in possession of 

a power- on cell phone by obtaining real time cell site data from 

a cell phone service provider. At a minimum, such data will 

identify the single cell tower that with which the cell phone 

would communicate if an actual call were placed at a given 

time. The cell phone companies also have the capability using 

data from multiple cell sites to triangulate a nearly exact 

location of a cell phone. 

Tracking a person by use of cell site data will require at a 

minimum a “2703(d) order”. This is named after the code 

section that specifies its uses, 18 U.S.C. § 2703(d). However, 

as discussed above, under the Carpenter decision, the tracking 

of a person for seven (7) days or more requires a warrant or 

recognized exception, therefore a LEO must exercise great 

caution using a 2703(d) for such tracking from here on out. It 

is not clear if it is permissible to track a person in public places 

for less than seven (7) days using a pen register and trap and 

trace order with cell site location. An AUSA assigned to each 

case should be contacted for guidance on this issue. 
263

15.4 Pen Registers and Trap and Trace Devices 

Pen registers and trap and trace devices are not regulated by 

Title III. Rather, use of such devices is subject to the provisions 

of Title 18 U.S.C. §§ 3121 – 3127.

15.4.1 Definitions and Purposes

a. Pen Registers

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 communications...” 18 U.S.C. § 3127(3).

To put it simply, a pen register captures all numbers that are 

being dialed out from a specific telephone line (allowing the 

interceptor to learn what numbers a suspect is calling from 

that telephone). Pen registers can also be used to capture the 

email addresses from an email sent by a target. Pen registers 

do not reveal the contents of the phone conversation or email.

b. Trap and Trace Devices

The U.S. Code definition of a trap and trace is “a device or 

process which captures the incoming electronic or other 

impulses which identify the originating number or other 

dialing, routing, addressing, and signaling information 

reasonably likely to identify the source of a wire or electronic 

communication provided, however, that such information shall 

not include the contents of any communication.” 19 U.S.C. § 

3127(4).

Trap and trace devices capture all numbers that are coming 

into a specified telephone line, and allows the interceptor to 
264

learn where telephone calls to the targeted phone are 

originating from. They can also be used to capture the email 

addresses of those who send emails to the target. A trap and 

trace does not reveal the content of the conversation or email. 

15.4.2 Applicable Federal Statutes 

The statutes governing pen registers and trap and trace 

devices are contained at 18 U.S.C. §§ 3121 – 3127. These 

devices are not regulated by Title III, and the Supreme Court 

has held the use of pen registers and trap and trace devices 

does not implicate the Fourth Amendment because there is no 

actual expectation of privacy in phone numbers dialed. Smith 

v. Maryland, 442 U.S. 735 (1979). Instead, the general rule 

regarding the use of pen registers and trap and trace devices 

is contained at 18 U.S.C. § 3121(a), which provides that “no 

person may install or use a pen register or trap and trace 

device without first obtaining a court order under section 

3123.” These court orders are often called Pen Register court 

orders, or Trap and Trace court orders, or PRTT court orders 

(Pen Register Trap and Trace). 

15.4.3 Obtaining a Court Order 

There are a number of procedural steps to obtain a court order 

to use a pen register or trap and trace device. First, an 

“attorney for the government” must make the application for 

the court order, not the individual law enforcement officer. 

Second, the application must be in writing, under oath, and 

directed to a United States Magistrate Court, United States 

District Court, or United States Circuit Court of Appeals. 

Third, the application must include the following three pieces 

of information: 

• The identity of the attorney for the government who is 

making the application; 
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• The identity of the law enforcement agency conducting 

the investigation, and;

• A certification by the attorney for the government the 

information likely to be obtained is relevant to an 

ongoing criminal investigation being conducted by that 

agency. 18 U.S.C. § 3122(b).

If these procedural steps are followed, a court order may be 

issued authorizing installation and use of a pen register or trap 

and trace device anywhere within the United States. This 

court order cannot exceed sixty days, although extensions of 

sixty (60) 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.

15.5 Video-Only Surveillance in an Area With REP 

Using video-only surveillance to record activity in an area 

where a reasonable expectation of privacy exists is governed 

by the Fourth Amendment, not Title III. Before either 

installing a video camera or using it to record a criminal 

target’s actions, officers must determine if a search warrant or 

consent is required. A search warrant, or recognized exception 

(or consent) is required if the officer needs to enter into a home 

or enter onto the curtilage of the home to install a camera. If 

the officer installs a video camera in a public location in order 

to observe activities in the curtilage of a target’s home, the 

officers will have to determine if the target has a reasonable 

expectation of privacy in the part of the curtilage the camera 

is observing.
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The courts have not clearly established what is required to 

develop REP in the curtilage of the home. One factor many 

courts have considered relevant is whether steps have been 

taken to block the view of the curtilage from public view. For 

example, the government may need a search warrant (or 

consent) if they want to record activity occurring in the home 

or in the curtilage when the target of the investigation has 

REP and law enforcement uses an elevated camera to see over 

and into the curtilage in a manner that is not visible from the 

street. But if the device is installed in an area where there is 

no REP and it monitors activities where there is no REP, no 

search warrant is required. For example, installing the camera 

in the neighbor’s second story window (with consent of the 

neighbor), or the next block over on an elevated street, where 

any pedestrian could see over the privacy fence of the target.

While recognizing Title III does not govern the use of videoonly surveillance in unprotected areas, many federal courts 

have adopted rules requiring search warrants for video-only 

surveillance to meet a higher Title III-like standard. 

Specifically, six federal circuit courts also require the following 

information be included in a search warrant for video-only 

surveillance:

• A factual statement alternative investigative methods 

have been tried and failed or reasonably appear to be 

unlikely to succeed if tried or would be too dangerous;

• A statement of the steps to be taken to assure 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 
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authorization, nor, in any event, longer than thirty days, 

measured from the date of the order (with thirty-day 

extension periods possible); and

• The names of the persons to be surveilled, if known.

Department of Justice policy also requires 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. Justice Manual, Chapter 9-7.200.

15.6 Stored Electronic Communications 

The Electronic Communications Privacy Act of 1986 (ECPA), 

found at Title 18 U.S.C. § 2510, was enacted by Congress to 

extend government restrictions on the interception of 

telephone calls to include transmissions of electronic data by 

computer. Specifically, ECPA was an amendment to Title III 

of the Omnibus Crime Control and Safe Streets Act of 1968, 

which was primarily designed to prevent unauthorized real 

time interception by the government of private oral, wire, and 

electronic communications.

The ECPA also contains the Stored Communications Act 

(SCA), found at Title 18 U.S.C. §§ 2701-2712, that controls 

government access to electronic communications that have

been stored by publicly- accessible internet service providers 

(ISP), such as Google, Yahoo, and Comcast. Electronic mail 

(email) stored on a network server is the primary example of a 

stored communication. While this portion of the statute is 

unusually complicated, it may be simplified into two basic 

questions:

• What type of information is being sought from the ISP?

• What type of legal document is necessary to require the 
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ISP to disclose the type of information being sought? 

15.6.1 Classifying the Information Being Sought

There are three types of information the government may wish 

to obtain from an ISP: 1) Basic subscriber information; 2) 

transactional records; and/or 3) the actual contents of stored 

communications. 

a. Basic Subscriber Information 

Title 18 U.S.C. § 2703(c)(2) provides that “basic subscriber 

information” includes the following: “Name; address; local and 

long distance telephone connection records, or records of 

session times and durations; length of service (including start 

date) and types of services utilized; telephone or instrument 

number or other subscriber number or identity, including any 

temporarily assigned network address; and means and source 

of payment for such service (including any credit card or bank 

account number), of a subscriber to or customer of such 

service.” 

b. Transactional Records

Title 18 U.S.C. § 2703(c)(1)(A) defines “transactional records” 

as “record[s] or other information pertaining to a subscriber to 

or customer of such service (not including the contents of 

communications....).” In short, such information relates to how 

the internet service subscriber uses his account. Described by 

many as a “catch-all” category, transactional records include 

“only historical data involving past activity on the account.” 

Examples of “transactional records” include: 

• Web sites visited by the customer or subscriber; 

• Cell-site data for cellular telephone calls; (But keep in 

mind Carpenter, and check with your local AUSA for 
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guidance.) and 

• Email addresses of other individuals with whom the 

account holder has corresponded (e.g., those who have 

sent email to, or received email from, the customer or 

subscriber.) 

c. Contents 

The “contents” of a network account includes the actual files 

stored in the account, for example, the actual text contained 

within an email and attachments to the email. According to 

statute, “contents” includes “any information concerning the 

substance, purport, or meaning of that communication.” That 

would also include any data in the subject line of an email. 

Although the statute states that the contents of some emails 

can be obtained without a search warrant, United States v. 

Warshak, 631 F.3d 266 (6th Cir. 2010), ruled that this section 

was unconstitutional. The Supreme Court cited favorably to 

Warshak in Carpenter, making it applicable across the nation. 

Therefore, the contents of any stored communications can only 

be obtained with a search warrant. 

It is important to remember this provision applies only to 

“stored electronic communications.” That term is defined in 

the statute as “any temporary, intermediate storage of a wire 

or electronic communication incidental to electronic 

transmission thereof,” and then only when held by the email 

provider. 18 U.S.C. § 2510(17). So, while a target may store 

emails on a home computer, they do not fall into the definition 

of a stored electronic communication because it does not meet 

the criteria above. 
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15.6.2 Obtaining Stored Electronic Communications

Three types of documents may be used to compel disclosure of 

the information listed above: (1) search warrants; (2) 18 U.S.C. 

§ 2703(d) court orders; and (3) subpoenas. The choice of which 

document is appropriate will depend upon the type of 

information sought. While the consent of the customer or 

subscriber may always be obtained, often consent is not sought 

for tactical reasons. Listed below are the minimum legal 

methods to compel an ISP to disclose information. Of course, 

officers may always use a more stringent method to access 

information that could have been obtained with a “lesser” form 

of process. For example, the government may obtain a search 

warrant to compel the production of certain information, even 

if a § 2703(d) court order or subpoena would suffice.

a. Basic Subscriber Information – Subpoena

Only a subpoena is required in order to obtain “basic 

subscriber information” from an ISP. 18 U.S.C. § 2703(c)(2). 

When such information is obtained using a subpoena, the 

government is not required to provide notice to the subscriber 

or customer. The subpoena may be issued by a federal grand 

jury or a federal trial court, or may be an administrative 

subpoena authorized by a federal statute, such as 6(a)(4) of the 

Inspector General Act.

b. Transactional Records – Court Order

To obtain “transactional records,” the government must, at a 

minimum, use a court order issued pursuant to 18 U.S.C. § 

2703(d). Either a United States Magistrate Judge, United 

States District Court Judge, or United States Circuit Court of 

Appeals Judge may issue a § 2703(d) court order. To obtain a 

2703(d) order, the government must “offer specific and 

articulable facts showing that there are reasonable grounds to 

believe that the contents of a wire or electronic information, or 
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the records or other information sought, are ‘relevant and 

material’ to an ongoing criminal investigation.” The 

government is not required to provide prior notice to the 

customer or subscriber before requiring the ISP to disclose the 

records sought pursuant to a § 2703(d) order.

c. Contents – Search Warrant

The government may require an ISP to provide the actual 

contents of wire or electronic communications held in storage. 

Content includes the subject line as well as the body of an 

email. To require an ISP to disclose the contents of a wire or 

electronic communication, the officer must obtain a search 

warrant.

When using a search warrant, the officer is not required to give 

prior notice to the customer or subscriber. Further, the officer 

may apply for a court order to prohibit the ISP from notifying 

the customer or subscriber of the existence of the warrant. If 

the court determines notification would result in an “adverse 

result,” a request for delayed notice will be approved. This 

includes endangering the life or physical safety of an 

individual, flight from prosecution, destruction of or tampering 

with evidence, intimidation of potential witnesses, or 

otherwise seriously jeopardizing an investigation or unduly 

delaying a trial. 18 U.S.C. § 2705(b). There is no specified 

period established in the statute for how long an ISP may be 

required to delay notice to the customer. Instead, the statute 

provides such an order may be issued “for such period as the 

court deems appropriate.”

15.6.3 Preservation Letters

There is no requirement under the law that internet service 

providers retain the emails of their customers for any specific 

period of time. Thus, there is the danger that, between the 
272

time when the officer’s need for the emails becomes apparent 

and an order is issued, those emails could be destroyed.

To guard against the deletion or other destruction of email 

evidence by an ISP before an order or other legal process can 

be obtained, 18 U.S.C. § 2703(f) authorizes a government 

agency to issue a preservation letter to that ISP. Generally, 

Preservation letters should be issued on government agency 

stationery by an agency supervisor. Once served with a 

preservation letter, the statute requires the ISP “shall take all 

necessary steps to preserve records and other evidence in its 

possession pending the issuance of a court order or other 

process.” The statute further requires the ISP to retain the 

records for a period of ninety days, with a ninety-day extension 

possible upon a renewed request by the government. The law 

is not prospective, meaning once the ISP receives a 

preservation letter and makes a copy of initial files requested, 

emails received after that time would not be captured unless 

specifically noted in the warrant.

15.6.4 Multi-Jurisdiction Warrants

Ordinarily, a search warrant may only be issued by a judge in 

the district where the evidence that is subject to seizure is 

located. This could present a problem with a warrant for stored 

electronic communications because even a single ISP may 

store emails on servers in more than one district. For this 

reason, 18 U.S.C. Section 2703(a) authorizes any federal court 

with “jurisdiction over the offense under investigation” to issue 

a warrant that is effective in all districts where such evidence 

is located. Therefore, an agent can present a search warrant to 

any magistrate judge in a district where part of the crime is 

occurring (or has occurred). The agent can then present the 

search warrant electronically to the electronic 

communications provider who must comply with it.
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The search warrant for stored electronic communications is 

valid even if the stored information is located outside the 

United States. As long as the United States has jurisdiction 

over the company that provides the communication service 

(like the email service provider), the company must comply 

with the search warrant.

15.7 Searching Computers Without a Warrant 

The Fourth Amendment requires that all searches must be 

reasonable and any search based upon a search warrant be 

based upon sworn facts showing probable cause to search a 

particular place or to seize a person or thing. Searches of 

computers and other electronic devices must therefore be in 

compliance with the Fourth Amendment’s requirements.

A warrant to search a computer must demonstrate probable 

cause that evidence of a crime is stored on the particular 

computer to be searched. In executing a computer search 

warrant, the officer must take reasonable steps to confine the 

search to the scope of the search authorized by the warrant 

and to avoid searching for items or information not within that 

scope; however, while doing so, if the officer observes evidence 

that is immediately apparent as evidence of another crime, the 

officer may seize it under the plain view doctrine.

Searching a computer without a warrant is legally permissible 

in one of three situations: (1) when the search is conducted by 

a private (non-governmental) entity; (2) when government 

conduct does not intrude into an area where an individual has 

a “reasonable expectation of privacy” (REP); or (3) when a 

recognized exception to the warrant requirement exists.

15.7.1 Private Searches

The Fourth Amendment does not apply to a search conducted 

by a private person who is not acting as an agent of the 
274

government or with the participation or encouragement of a 

government official. For example, when a computer owner 

takes his computer to a private repair facility for servicing and 

incriminating evidence is found on the computer by the repair 

person, the Fourth Amendment does not apply because there 

was no intrusion into an REP area.

When searching without a warrant after a private search has 

occurred, the officer must limit the investigative search to the 

precise scope of the private search. Even though it was 

obtained without a warrant, the evidence within that scope 

may be properly used by the government to obtain a warrant 

for a further search of that computer. Moreover, the 

government may temporarily seize that computer while it is 

actively seeking a search warrant. Of course, the officer could 

also conduct a warrantless search of that computer if a valid 

exception to the warrant requirement applies.

15.7.2 REP in Computers

There is a two-prong REP test for any place to be searched: 

first, whether the individual exhibited a personal, or 

subjective, expectation of privacy as to the place or thing to be 

searched; and, second, whether that expectation is one society 

is prepared to recognize as objectively reasonable. REP does 

not exist unless both prongs of the test are met.

In computer search cases, the question is whether an 

individual enjoys a reasonable expectation of privacy in 

electronic information stored on computers, smart phones, 

thumb drives, and other electronic storage media. If the 

answer is “yes,” then the officer ordinarily must obtain a 

warrant before accessing the information. In analyzing the 

issue of REP, some courts have compared computers to closed 

containers such as filing cabinets.
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To be sure, the Fourth Amendment generally prohibits the 

government from accessing and viewing information stored in 

a computer without a warrant if, in the same situation, an 

officer would be prohibited from opening a closed container 

and examining the contents. That stated, however, a few 

courts have recently begun veering away from that concept 

noting that a computer, given its design and purpose, very 

likely contains vast quantities of personal data. Thus, those 

courts have, to varying degrees, required the government to 

ensure that it takes reasonable steps to insure that the 

execution of a computer search remains within the scope of the 

search authorized by the underlying search warrant. 

15.7.3 Losing REP in Computers 

Although individuals generally have a reasonable expectation 

of privacy in their computers, circumstances may eliminate 

that expectation. Some of these circumstances are outlined 

below. 

a. Exposure to the Public 

In the landmark case of Katz v. United States, the Supreme 

Court made clear that “what a person knowingly exposes to 

the public, even in his own home or office, is not a subject of 

Fourth Amendment protection.” When individuals make 

information on a computer openly available, they lose any 

expectation of privacy in that information. For example, this 

may occur when a person leaves data un-encrypted or 

password protected on a computer accessible to others, or 

where one makes his computer files available to others via 

peer-to-peer software. 

b. Stolen Computers 

A thief has no REP in the contents of a computer he has stolen, 

including content that the thief has added to the stolen 
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computer. This also applies to a computer that was obtained 

through fraud – such as a purchase with a stolen credit card; 

however, the rightful owner or possessor of the stolen 

computer generally retains REP in the contents. 

c. Third-Party Possession 

The courts have repeatedly held that one who divulges 

information to a third party, even with the subjective 

expectation the information will remain private, does not 

retain control over that information once it has been provided 

to the third-party. Rather, he assumes the risk that the third 

party will divulge the information to others. (Note that the 

Carpenter decision may put this into question to some degree, 

even though the Justices in that decision stated that the third 

party doctrine is not implicated by it.) 

15.7.4 Exceptions to the Warrant Requirement 

Warrantless searches that fall within an established exception 

to the warrant requirement do not violate the Fourth 

Amendment. Below are some of the common exceptions to the 

warrant requirement as they apply to searches of computers. 

a. Consent 

If a person gives valid consent to search, a warrant is not 

required. 

1. Requirements 

There are two requirements for a consent search to be valid. 

First, the consent must be voluntary and not the result of 

coercion. If a defendant later challenges the voluntariness of 

his consent, for example, in a motion to suppress, the 

government carries the burden of proving that consent was 

voluntary. 
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Second, the consent must be also given by an individual who 

possesses either actual or apparent authority over the 

computer to be searched. Do parents, roommates, friends, or 

others have the authority to consent to a search of another 

person’s computer files? Generally, the answer to that 

question depends upon whether the owner of the computer has 

afforded the consenting person shared access to those 

computer files.

2. Scope of a Consent Search

Assuming voluntary consent by a person with authority to give 

it, the next issue is the scope of the consent given. For example, 

when a target consents to the search of his “computer,” does 

the consent authorize the officer to search devices attached to 

the computer (such as a thumb drive or a portable USB hard 

drive) or media (such as CDs or DVDs) located near the 

computer?

The scope of a consent search is defined by the terms and plain 

meaning of the consent given. An individual may limit the 

scope of any consent. If so, the scope of a consent search may 

not exceed, either in duration or physical scope, the limits of 

the consent given. Additionally, where consent has been 

granted, it may also be revoked. If that happens, the officer 

must immediately stop searching unless another Fourth 

Amendment exception applies. Of course, any incriminating 

evidence the officer discovered before the consent was revoked 

may be used to demonstrate probable cause in support of a 

search warrant.

Does consent to search a location or item implicitly include 

consent to access computer memory or electronic storage 

devices encountered during the search? Courts look to whether 

the particular circumstances of the request for consent 

implicitly or explicitly limited the scope of the search to a 

particular type, scope, or duration. Be especially careful about 
278

relying on consent as the basis for a search when consent was 

obtained for one reason or type of evidence, but the officer then 

wants to conduct a search for a different reason or type of 

evidence. Because the decisions evaluating the scope of 

consent to search computers have sometimes reached 

unpredictable results, the officer must indicate the scope of the 

search explicitly when obtaining a suspect’s consent to search 

a computer. 

While consent to search a “computer” would ordinarily include 

the active memory and internal hard drives of the computer 

case or body, it does not necessarily include storage media such 

as CDs, DVDs, thumb drives, portable hard drives, and other 

media. Caution is best here; the consent obtained should 

specifically include these items if the government wants to 

search them. 

3. Third-Party Consent 

It is common for several people to own or use the same 

computer equipment. Generally speaking, if any of those 

people give permission to search for data, the government may 

rely on that consent. In such cases, all users have assumed the 

risk that a co-user might discover everything on the computer, 

and might also permit law enforcement to search this “common 

area” as well. A private third party may consent to a search of 

property under the third party’s joint access or control. This 

rule often requires the officer to inquire into the third party’s 

rights of access before conducting a consent search, and to 

draw lines between those areas that fall within the third 

party’s shared or common authority and those areas outside 

the third party’s control. 

Prior to the Supreme Court’s holding in Georgia v. Randolph, 

547 U.S. 103 (2006), in 2006, consent by an owner or resident 

of a dwelling was sufficient to justify a warrantless search of 

the dwelling even if another occupant objected. Randolph 
279

reversed that line of cases and held the refusal of a physically 

present co-owner or resident to permit the warrantless search 

of the dwelling would invalidate that search as to the nonconsenting party. No federal court has yet expanded the 

rationale in Randolph to invalidate a consent search of a 

computer in the home when the wife gave consent but the 

husband – who was also present – objected to the search. 

Indeed, at least one Circuit Court has specifically declined to 

expand the holding of Randolph to personal property, in 

particular, a computer. United States v. King, 604 F.3d 125 (3d 

Cir. 2010). Therefore, the officer should seek local legal advice 

before conducting a warrantless computer search in these 

circumstances. 

The presence of encrypted or password protected data will, in 

most cases, indicate the absence of common authority to 

consent to a search by co-users who do not know the password 

or possess the encryption key. Conversely, if the suspect has 

given the co-user the password or encryption key, then the couser probably has the requisite common authority to consent 

to a search of the files. 

The Supreme Court has yet to determine whether the 

government may compel the owner to disclose a decryption 

password or other means of access, such as biometric keys, 

without violating a suspect’s Fifth Amendment right against 

self-incrimination. The Court’s answer to this question will 

likely depend on whether the act of providing the decryption 

key or other means of access is considered testimonial in 

nature. For example, a district court in Vermont has held that 

when the government already knew the contents of a computer 

due to a previous search of the device by a border agent, the 

government could compel the suspect to disclose a decryption 

key without violating the Fifth Amendment since the contents 

of the device were already known to the government. In re 

Grand Jury Subpoena (Boucer), 2009 U.S. Dist. LEXIS 13006 

(D. Vt. Feb 19, 2009). Where, however, the government has no 
280

prior knowledge of either the existence or the whereabouts of 

information on the computer, the Eleventh Circuit has found 

that the act of providing a decryption key from a suspect would 

be testimonial in nature and therefore protected by the Fifth 

Amendment privilege against self-incrimination. United 

States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 

F.3d 1335 (11th Cir. 2012). 

4. Implied Consent and Network Banners 

The Fourth Amendment prohibits all "unreasonable searches 

and seizures" by a government employer or supervisor of a 

place where an employee of that government agency has a 

legitimate expectation of privacy. A legitimate expectation of 

privacy may exist as to the employee’s office, desk, filing 

cabinets, and computer. The Supreme Court has recognized, 

however, that office practices, procedures, or regulations may 

reduce or narrow an employee’s legitimate privacy 

expectations. O'Connor v. Ortega, 480 U.S. 709 (1987).

For example, computer users may waive their rights to privacy 

as a condition of using a computer or the system to which the 

computer is connected. This often occurs through the use of 

written employment policies and/or network “banners.” 

Banners are written notices that greet users before they log on 

to a computer or computer network. These notices will 

typically reflect the owner of the computer and/or network to 

which the computer is connected may, as it deems appropriate, 

audit, inspect, and/or monitor employees' use of the Internet, 

including all file transfers, all websites visited, and all e-mail 

messages. This policy places the employees on notice they may 

not reasonably expect their use of the agency computer would 

be private. 

Alternatively, a government agency’s banner policy may result 

in the employee’s implied consent to the search by his 

employer of otherwise private areas in his office. Some courts 
281

have proven reluctant to apply the implied consent doctrine 

absent evidence the suspect actually knew of the search and 

voluntarily consented to it at the time the search occurred. 

Other courts have held the banner language was sufficient to 

permit intrusions only for network administrator 

housekeeping but not for general law enforcement purposes. 

In any event, the best practice for a criminal investigator is 

always to consult with an AUSA before relying on a banner 

search. 

b. Exigent Circumstances

Under the “exigent circumstances” exception to the warrant 

requirement, the officer may search without a warrant if the 

circumstances “would cause a reasonable person to believe 

that entry...was necessary to prevent physical harm to the 

officers or other persons, the destruction of relevant evidence, 

the escape of the suspect, or some other consequence 

improperly frustrating legitimate law enforcement efforts.” 

United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 

1984). In determining whether exigent circumstances exist, 

consider: (1) the degree of urgency involved, (2) the amount of 

time necessary to obtain a warrant, (3) whether the evidence 

is about to be removed or destroyed, (4) the possibility of 

danger at the site, (5) information indicating the possessors of 

the contraband know the police are on their trail, and (6) the 

ready destructibility of the contraband. 

Exigent circumstances often arise in computer cases because 

electronic data may be easily altered, concealed, or destroyed. 

This can happen in a matter of seconds as the result of manual 

or pre- programmed computer commands or physical 

mutilation, as well as from excess humidity, temperature, or 

magnetic fields created, for example, by passing a strong 

magnet over a hard drive.
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The exigent circumstances exception does not allow the 

government to search or seize beyond what is necessary to 

prevent the destruction of the evidence. When the exigency 

ends, the right to conduct a warrantless search based on that 

exigency ends as well. In short, the need to prevent the 

destruction of evidence does not authorize the government to 

search without a warrant once the likelihood of such 

destruction has ended. Accordingly, the seizure of computer 

hardware to prevent the destruction of information it contains 

will not ordinarily support a subsequent search of that 

information without a warrant. Once steps have been taken to 

prevent destruction of the evidence, the officer must quickly 

move to obtain a warrant unless valid consent to search is 

obtained. 

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, the officer must be in a lawful position to 

observe and access the evidence, and its incriminating 

character must be immediately apparent. Horton v. California, 

496 U.S. 128 (1990).

The plain view exception does not allow the officer to engage 

in a search for which he or she did not have independent 

authority, such as consent or a search warrant. Rather, while 

the government is engaged in an otherwise lawful search, 

plain view allows the officer to seize evidence of another crime 

when the incriminating nature of that evidence is immediately 

apparent. 

In computer cases, this means that the government may not 

rely on the plain view exception to open a closed computer file, 

look into a thumb drive lying in the open, or search a computer 

because incriminating evidence has been seen. The contents of 

a file that must be opened to be viewed are not in “plain view.” 
283

For example, if an officer observed a computer in a public place 

and saw data on a suspect’s computer monitor that constitutes 

probable cause evidence of a crime, he or she may immediately 

seize that computer to prevent the destruction of the data. 

Thereafter, if the officer wished to conduct a further search of 

that computer, he or she will need a warrant or consent to do 

so. However, what the officer observed on the monitor may be 

used to establish probable cause. 

It would seem logical, therefore, to conclude the plain view rule 

would also apply to a search of a computer pursuant to a 

warrant and the discovery of evidence outside the scope of the 

warrant. For example, while executing a search warrant to 

look for evidence of fraud, an agent opens a computer file that 

turns out to be an image of child pornography. This image 

would be admissible because the agent was lawfully searching 

the computer pursuant to a warrant. Moreover, if, while 

continuing the search for evidence of the fraud pursuant to the 

search warrant, the agent discovers more child pornography, 

those images would also be admissible. On the other hand, if 

the agent decides to redirect his efforts towards finding more 

child pornography, the plain view exception would not apply 

because he would have ventured outside the scope of the initial 

search warrant. To do so lawfully, the agent must first obtain 

a second search warrant related to the search for child 

pornography. 

Because suspects can conceal evidence by changing the file 

name or changing file extensions to make, for example, and 

image file appear to be a word processing document, usually 

there is no restriction on looking for specific types of files or 

files with specific names. 

Some Courts have not applied the plain view doctrine as 

broadly to computer searches as it does to non-electronic 

searches. See United States v. Comprehensive Drug Testing, 

Inc., 579 F.3d 989 (9th Cir. 2009). During the execution of a 
284

computer search warrant, if an officer finds evidence of a crime 

that is arguably outside the scope of the warrant, the officer 

may seize it under the plain view doctrine. If the officer has 

not yet concluded the search reasonably permitted by the 

search warrant, the officer may continue that search. If, 

however, the officer’s intent is in any way to expand the search 

to include evidence of the criminal activity beyond the scope of 

the search warrant, the officer must obtain a separate search 

warrant. In doing so, the officer may use the newly discovered 

evidence. The best practice would be to suspend the original 

search and seek a second or amended search warrant to permit 

a search for the newly discovered crime. 

d. Search Incident to Arrest

A search conducted incident to a lawful custodial arrest (SIA) 

is a well-recognized exception to the warrant requirement. 

Such searches have been acknowledged by the Supreme Court 

as reasonable and permissible without a warrant because of: 

(1) the need to disarm the suspect to take him into custody, 

and (2) the need to preserve evidence for later use at trial. 

Chimel v. California, 395 U.S. 752 (1969). The permissible 

scope of a search incident to arrest includes a search of the 

person and the areas under the person’s immediate control for 

weapons, means of escape, and evidence of a crime. 

In 2014, the Supreme Court in Riley v. California, 573 U.S. 

373 (2014), held officers cannot search the electronic data in a 

mobile phone, or any other electronic device, incident to the 

arrest of a person. Officers are permitted to examine the 

physical parts of the phone, remove the phone case or battery, 

and otherwise ensure the phone or electronic device does not 

contain a weapon or contraband. Officers cannot examine the 

electronic data contained on the device without a search 

warrant, consent, or other (rare) exigent circumstance. 
285

e. Inventory Searches

Inventory searches are a well-recognized exception to the 

warrant requirement and explained in detail in the Fourth 

Amendment chapter of this book. Neither the Supreme Court 

nor any of the federal circuit courts have issued opinions 

concerning whether the data stored on a cell phone may be 

inventoried, but many lower courts have tackled the issue. 

These courts have all held officers may not inventory of the 

digital contents of a cell phone. The officers may seize the 

phone and list it in the inventory, but the officer cannot 

examine the electronic data stored on a phone or electronic 

device pursuant to an inventory search. It is unclear and 

unsettled whether or not this exception will be extended in the 

future due to the rise in crypto-currency, but as of the date of 

the publication of this book, no federal court has extended the 

inventory search exception to electronics.

15.8 Preparing Search Warrants for Computers 

Searches that target computers and data have some 

differences from searches of physical locations. In most 

searches, the government is looking for a particular physical 

item in a particular location. Because computer files consist of 

electronic data that can be stored in any digital medium and 

instantly moved or deleted, the government may not always 

know precisely where particular computer files are stored or 

in what form. The data may be on the computer being 

searched, but electronically hidden from view. The filenames 

and suffixes may be anything the suspect wants them to be. 

The data may be instantly erased, modified, or transmitted to 

another person or to remote storage. The same data may exist 

in identical form in many different places. Court cases 

recognize that computer records are extremely susceptible to 

tampering, concealment, and destruction.
286

15.8.1 The Need for Pre-Search Information

It is always critical for the criminal investigator to have as 

much advanced knowledge as possible about an area in which 

a search warrant is to be executed. This applies equally, if not 

more so, to computer searches. At a minimum, prior to 

executing a search warrant, the officer should attempt to 

determine:

• What types of computers and operating systems is the 

suspect using?

• What types of software does the suspect use?

• Is the computer connected to a network? If so, where is 

the computer network server located?

• Can the computer or data storage device be searched 

safely and effectively on-site, or must the computer be 

moved to another location to conduct the search?

• Is the execution of the computer search warrant likely to 

have an adverse impact on the operation of a legitimate 

business, for example, the search of a computer at a 

doctor’s office where patient health records are likely 

stored?

Gathering this information may involve an interview of the 

system administrator of the targeted network, of others who 

are familiar with the network, or possibly of a whistleblower 

or cooperating individual. This might be done in an undercover 

capacity. On-site visits (often undercover) may also reveal 

important information about the hardware involved.
287

15.8.2 The Particularity Requirement

The Fourth Amendment does not permit general exploratory 

searches, but requires the place to be searched and things to 

be seized be described with “particularity.” This requirement 

applies equally to searches of computers and the data 

contained on them.

a. The “Independent Component Doctrine”

The officer must be particular about where to look for data. 

Each component to be searched must be viewed independently 

and there must be probable cause to search each component. 

For example, to say the government wants to search or seize a 

“computer” can be both too broad and too narrow, and it rarely 

meets the Fourth Amendment particularity requirement.

Data is often the real objective of a computer search. Data can 

be stored in many places, including the hard drive in the 

computer, on removable media such flash memory devices 

such as thumb drives, memory chips, zip drives, CDs/DVDs, 

external hard drives and at off- site locations referred to as 

“the Cloud.”

Peripheral components, such as routers, printers, and 

scanners, often have small memory chips that may be a good 

source of evidence. Similarly, the government may wish to 

seize a keyboard, monitor, cables or other devices during the 

search, to assist in retrieving the information from the 

computer. If so, each item must be independently listed and its 

seizure justified.

Other items to search for would include computer manuals so 

officers and forensic examiners know how to circumvent 

encryption and/or passwords; original software and manuals; 

and notes and journals that might contain passwords, 
288

encryption keys, e-mail addresses, Internet URLs (addresses), 

and indexes of storage media.

b. Identifying the Objects of the Search

In most computer or data searches, the primary objective of 

the search is the data and not the computer and its attendant 

components.

In order to seize data, the government must articulate 

probable cause that the data exists, and describe what that 

data is. The officer cannot simply request permission to seize 

“all records” from an operating business unless there is 

probable cause to believe the criminal activity under 

investigation pervades the entire business. Instead, the 

government must include limiting phrases in the description 

of the files that can modify and limit the “all records” search to 

that for which probable cause exists.

For example, the officer may specify the crime under 

investigation, the target of the investigation if known, and the 

time frame of the records involved. In addition, instead of just 

saying “all records showing bank transactions between x and 

y,” agents should say “all records in any form ...” to ensure the 

affidavit and warrant includes not only paper, but electronic 

records as well.

On occasion seizing only the actual computers – and not the 

data – may be the objective of the search. That would be the 

case, for example, when searching for stolen computers 

(contraband or fruits of a crime). That might also apply to a 

computer used in the commission of a crime 

(instrumentalities) such as when a computer was used to 

prepare a letter or spreadsheet or to send an e-mail. 

“Hardware only” searches are uncommon because a computer 

involved in a crime was probably used to create, receive, 

transmit, or otherwise manipulate data. In such a case, officers 
289

want to seize the computer and search the data contained in 

the computer.

15.8.3 Justifying Off-Site Searches

In many, if not most, computer searches, the government will 

want to remove the computer from the location listed in the 

search warrant and conduct the search and forensic analysis 

of its contents at a different location. If so, the government 

must ask for and justify an off-site search in the search 

warrant affidavit and ensure that the search warrant includes 

the court’s approval to do so. This requirement exists because 

seizing a computer can effectively close down a business, 

disable a computer network, or deny innocent persons the 

ability to conduct daily activities. It is important that the 

officer considers such factors and include sufficient 

information in the search warrant application to justify 

seizure of a computer for later, off-site forensic examination.

In some instances, the desired data may be obtained at the 

location where the media or computer is found. When this is 

possible, the computer system and the peripheral devices do 

not have to be taken from the scene to be searched.

As the use of computers and the sophistication and complexity 

of computer systems increases, it has become less likely that 

safe and meaningful on-scene computer searches can be 

conducted; therefore, off-site searches of computers are 

increasingly becoming the norm. As mentioned above, 

however, the officer must articulate in the search warrant 

affidavit facts and information to justify the removal and offsite search of computers, devices, or computer media. Some of 

the justifications are:

• Must search to determine media contents: The 

government may often be unable to determine what 

storage media contains by looking at just the container; 
290

each container (hard drive, floppy disk, CD or other 

media) must be examined.

• Time required: It may take days or weeks to find the 

specific information described in the warrant because 

computer storage devices can contain extraordinary 

amounts of information. Searching on scene may be 

more intrusive because of the time officers would have 

to remain on the premises.

• Labeling, intentional mislabeling, and hiding data: Even 

if the government knows specific information about the 

files sought, the data may be mislabeled, encrypted, 

stored in hidden directories, or embedded in “slack 

space” a simple file listing will not reveal. Images can be 

hidden in all manner of files, and it may take special 

skills and equipment to find it.

• Availability of necessary tools: On-site tools may not be 

sophisticated enough to defeat security and encryption 

measures.

• Proper environment: The lack of a controlled and clean 

environment to conduct the search.

• Lack of On-Site Technical Expertise: Attempting to 

search files on-site may risk damaging the evidence 

itself in some cases. Off-site searches also may be 

necessary if there is reason to believe the computer has 

been “booby trapped” with a self- destruct feature.

• Preserving the Evidence: In an on-site search, the target 

or other persons could momentarily access the computer 

to delete or destroy data. This is especially true if the 

computer is attached to a network (even wirelessly) 

because a command to the computer to be searched 

might be sent from any computer on the network.
291

• Safety of the Officers and Preserving Law Enforcement 

Techniques and Methods: A lengthy search in the 

target’s home or business may unnecessarily expose 

officers to risk.

If removal of computers, devices and media has not been 

addressed in the affidavit, and it is determined an off-site 

search is necessary, the government should seize the items 

and not search them until a new search warrant has been 

obtained justifying the removal of the items.

15.8.4 Identifying the Need for Multiple Warrants

Increasingly, computer users choose to store their data on an 

Internet-connected computer (server) that can be located 

anywhere in the world. From a business efficiency viewpoint, 

this makes good sense as people can retrieve data no matter 

where they are, provided they can access the Internet. From a 

criminal’s point of view, storing data on a server makes finding 

that data harder for law enforcement and permits the criminal 

to constantly move that data at will.

F.R.Cr.P. 41(b) states that a magistrate judge located in one 

judicial district may issue a search warrant for “a search of 

property ... within the district,” or “a search of property ... 

outside the district if the property ... is within the district 

when the warrant is sought but might move outside the 

district before the warrant is executed.” If there is reason to 

believe that a network search will retrieve data (not stored emails as addressed below) that is stored in multiple locations, 

the officer must obtain a warrant in each affected district.

A different rule exists in the case of “stored electronic 

communications.” Stored electronic communications are emails that are stored temporarily on the servers of companies 

that provide e-mail services (e.g. AOL, Yahoo, Hotmail, 

Google) where the storage is incidental to the transmission of 
292

the e-mail. For stored electronic communications, 18 U.S.C. § 

2703 eliminates the need to obtain multiple warrants. A 

nationwide warrant for stored e-mails can be issued “using the 

procedures described in the Federal Rules of Criminal 

Procedure by a court with jurisdiction over the offense under 

investigation.”

If a suspect in a criminal investigation in the Eastern District 

of Virginia has stored electronic communications on internet 

servers in California and Texas, a federal judge in the Eastern 

District of Virginia could issue a search warrant for the stored

e-mails in California and Texas so long as the issuing judge 

had jurisdiction over the suspected offense. The judge can even 

issue a search warrant for an email account that is stored 

outside the United States, if the United States has jurisdiction 

over the email service provider. Agents can obtain warrants 

for email accounts like Gmail, Yahoo, and Microsoft Outlook 

even if the information is stored outside the United States 

because these companies do business inside the United States.

15.9 Executing Search Warrants for Computers 

15.9.1 Technical Assistance During Execution

A computer forensics expert is essential not only to the 

operational planning for executing the warrant, but also to the 

execution of the warrant. Accordingly, the officer should give 

strong consideration to having a technical expert accompany 

the search team or, at a minimum, be available on immediate 

call. Such person might very well be a sworn criminal 

investigator; however, Title 18 U.S.C. § 3105 also permits nonlaw enforcement officers to aid in the execution of a warrant. 

That statute provides:

A search warrant may in all cases be served by any 

of the officers mentioned in its direction or by an 

officer authorized by law to serve such warrant, 
293

but by no other person, except in aid of the officer 

on his requiring it, he being present and acting in 

its execution. 

The best practice for a criminal investigator is to specify in the 

search warrant application the need for a computer forensics 

expert (especially if the expert is not a sworn officer) to be a 

part of the search team and, if possible, to name the person 

who will assist in the execution of the warrant. In short, except 

in all but the simplest cases, consult a forensics expert in 

planning the search, obtaining the warrant, and executing the 

search. 

15.9.2 Knock and Announce 

The “knock and announce” statute set forth at 18 U.S.C. § 3109 

provides as follows: 

The officer may break open any outer or inner door 

or window of a house, or any part of a house, or 

anything therein, to execute a search warrant, if, 

after notice of his authority and purpose, he is 

refused admittance or when necessary to liberate 

himself or a person aiding him in the execution of 

the warrant. 

This statute applies to all searches of residences, including 

when the objectives of the search include computers and data. 

The rule is not absolute, however. In Richards v. Wisconsin, 

520 U.S. 385 (1997), the Supreme Court held a law 

enforcement officer who executes a search warrant may 

dispense with the knock-and-announce requirement if he or 

she has: 

a reasonable suspicion that knocking and 

announcing their presence, under the particular 

circumstances, would be dangerous or futile, or 
294

that it would inhibit the effective investigation of 

the crime by, for example, allowing the destruction 

of evidence. 

By knocking and announcing one’s official presence and 

authority, a law enforcement officer may provide a criminal 

target with the opportunity to conceal or destroy electronic 

evidence. Technically adept suspects may “hot wire” their 

computers with software that, with a few keystrokes by the 

owner or operator, may quickly delete or obliterate evidence. 

In many cases, this may involve a “hard deletion,” rendering 

the data unrecoverable. Even merely turning off the computer 

may result in the destruction, alteration or encryption of data 

the user was working on at the time of the shut-down. 

It is therefore essential the officer acquire as much 

information as possible in advance of the search about the 

criminal suspect and the computer hardware and software 

that will be the subject of the search. When the officer has 

reason to believe that knocking and announcing the 

government’s presence would result in the destruction of any 

evidence being sought, would be dangerous, or would be futile, 

the officer should request a no-knock warrant from the 

magistrate judge. Even if a no-knock warrant is not obtained, 

the knock-and-announce statute does not prevent the officer 

from conducting a no-knock search, if, upon arrival at the 

search location, the officer develops reasonable suspicion that 

evidence will be destroyed. In Richards, the Supreme Court 

made clear that “the reasonableness of the officers’ decision [to 

dispense with the knock- and-announce rule] ... must be 

evaluated as of the time they entered” the area to be searched. 

Accordingly, the officer may exercise independent judgment 

and decide to conduct a no-knock search when executing the 

search, even if he or she does not have a no-knock warrant. 

For example, while approaching a residence with a warrant to 

search for data, an officer develops reasonable suspicion his 
295

presence has been detected and a person or persons inside will 

destroy (delete) the data. Such facts may excuse compliance 

with the knock and announce statute. If the officer dispenses 

with the knock and announce requirements, he or she must be 

prepared to articulate the basis for this decision to a judge.

In a memorandum dated September 13, 2021, the Department 

of Justice issued policy changes applicable to its law 

enforcement components on “no knock” entries. Specifically, 

law enforcement agents of the Department of Justice are 

limited to using “no knock” entries to those circumstances in 

which the agent has reasonable grounds to believe at the time 

the warrant is sought that knocking and announcing the 

agent’s presence would create an imminent threat of physical 

violence to the agent and/or another person. Or, if an agent 

did not anticipate the need for a “no knock” entry at the time 

the warrant was sought, the agent may conduct a “no knock” 

entry only if exigent circumstances arise at the scene such that 

knocking and announcing the agent’s presence would create 

an imminent threat of physical violence to the agent and/or 

another person.

Therefore, in accordance with the Department of Justice 

memorandum, “no knock” entries solely to prevent the 

destruction or removal of evidence are no longer permitted by 

components within the Department of Justice.

However, it is likely U.S. Attorney’s Offices across the United 

States will not concur in the application of “no knock” warrants 

nor support “no knock” entries to prevent the destruction of 

evidence from any law enforcement agency, including those 

agencies outside the Department of Justice.

This is a policy change within the Department of Justice and 

Congress has not made any changes to 18 U.S.C. § 3109 and 

case law continues to support “no knock” entries to prevent the 

destruction of evidence. As a practical matter though, because 
296

the concurrence of the U.S. Attorney’s Office is required on all 

search warrant applications, all Federal Law Enforcement 

agents will need to comply with the Department of Justice 

memorandum on “no knock” entries.

15.9.3 Time Frames For Searching Computers

The forensic examination of the contents of a computer that 

has been lawfully seized pursuant to a search warrant may 

take months to complete because computers can store 

enormous amounts of data. Neither the Federal Rules of 

Criminal Procedure nor the Fourth Amendment imposes any 

specific limitation on the time period for such forensic 

examination to be completed. Under F.R.Cr.P. 41(e)(2)(B), a 

search warrant may authorize not only the seizure of 

electronic storage media or the seizure and copying of 

electronically stored information, but also a later review of the 

media or information consistent with the warrant. Thus, any 

court-imposed time limitation as to the execution of the 

warrant refers to the seizure or on-site copying of the media or 

information, but not to any later off-site copying or review.

Ordinarily, then, unless otherwise ordered by the Court, the 

government may retain a seized computer and examine its 

contents in a careful and deliberate manner without legal 

restrictions, subject only to F.R.Cr.P. 41(g)’s provision that a 

“person aggrieved” by the seizure of property may bring a 

motion for the return of that property. If the targeted computer 

serves as storage of data necessary to operate a legitimate 

business, medical facility, or the like, the agent should be 

prepared to copy the data from the targeted computer, rather 

than resorting to seizure and retention of that computer, if the 

latter action would unnecessarily inhibit the operation of the 

underlying enterprise.
297

15.10 Authentication of Electronic Data 

Authentication is covered in the Courtroom Evidence chapter.
298
299

Chapter 16 – 

 

Federal Court Procedures 

16.1 Introduction ............................................................. 301

16.2 Two Types of Federal Court Jurisdiction in Criminal 

Matters ................................................................................ 302

16.3 The Organization, Powers, and Duties of the United 

States Courts ....................................................................... 303

16.3.1 The Supreme Court of the United States..............303

16.3.2 Courts of Appeals – The Circuit Courts ................304

16.3.3 United States District Courts ................................305

16.3.4 United States Magistrate Courts ..........................307

16.4 Beginning a Formal Criminal Prosecution in Federal 

Court 308

16.4.1 Charging documents...............................................308

16.4.2 Appearance Documents..........................................313

16.4.3 Summary of Offenses, Courts, and Charging 

Documents Sufficient for Trial..............................................316

16.5 The Initial Appearance ............................................ 317

16.5.1 The Initial Appearance...........................................317

16.5.2 Bringing a Defendant Before a Magistrate Judge317

16.5.3 Non-Federal Judges and Initial Appearances ......318

16.6 Initial Appearance: The Officer’s Responsibility ..... 318

16.6.1 Requirement and Timing .......................................319

16.6.2 Purpose and Procedure ..........................................320

16.6.3 Defendant’s Rights at the Initial Appearance ......320

16.6.4 Pretrial Release or Detention ................................321

16.6.5 Detention Hearings and Decision..........................323

16.6.6 Release is Preferred................................................323

16.6.7 Bail Jumping...........................................................323

16.7 Initial Appearance: Which District? ........................ 323
300

16.7.1 Initial Appearance Options....................................324

16.7.2 Removal and Identity Hearings.............................324

16.8 Diplomats ................................................................. 325

16.8.1 Diplomatic Immunity .............................................325

16.8.2 Verifying the Status of Diplomats .........................325

16.8.3 Diplomats: After Verifying Diplomatic Status .....326

16.8.4 Diplomats: Traffic Incidents ..................................326

16.9 Foreign Nationals – Compliance with the Vienna 

Convention on Consular Relations (VCCR) ........................ 327

16.9.1 Arrests/Detentions – Advising of Right to Consular 

Notification.............................................................................328

16.9.2 Consular Access ......................................................329

16.9.3 Deaths .....................................................................329

16.9.4 Appointments of Guardians/Trustees ...................330

16.9.5 Ship/Aircraft Accidents ..........................................330

16.10 Members of Congress ............................................... 330

16.10.1 Privilege from Arrest..............................................330

16.10.2 Exceptions to the Privilege ....................................330

16.11 Juveniles .................................................................. 331

16.12 Preliminary Hearings and Arraignments ............... 332

16.12.1 Preliminary Hearings.............................................332

16.12.2 Arraignment............................................................334

16.13 The Grand Jury ....................................................... 335

16.13.1 Purpose of the Grand Jury.....................................335

16.13.2 Selection, Empanelment, and Structure ...............335

16.13.3 The Grand Jury Process.........................................336

16.13.4 Sealed Indictments .................................................338

16.13.5 Post-Indictment Grand Jury Powers.....................338

16.14 Grand Jury Subpoenas ............................................ 339

16.14.1 Power and Flexibility of Grand Jury Subpoenas..339

16.14.2 Types of Grand Jury Subpoenas............................340

16.14.3 Service of Subpoenas ..............................................340
301

16.14.4 Quashing or Modifying a Subpoena ......................340

16.14.5 Legal Requirements for a Subpoena .....................341

16.14.6 Limitations of Grand Jury Subpoenas ..................341

16.14.7 Forthwith Subpoenas .............................................342

16.14.8 The Mechanics of Obtaining a Subpoena..............343

16.14.9 Inspector General (IG) Subpoenas ........................343

16.15 Secrecy Requirement ............................................... 344

16.15.1 Exceptions to F.R.Cr.P. 6(e)...................................345

16.16 Defense Access to Government Evidence ................ 348

16.16.1 The Brady Doctrine ................................................349

16.16.2 Disclosure under Giglio..........................................349

16.16.3 The Jencks Act and F.R.Cr.P. 26.2........................351

16.16.4 Discovery under F.R.Cr.P. 16 ................................352

16.16.5 eDiscovery in Federal Criminal Investigations and 

Prosecution.............................................................................355

16.16.6 eCommunications: Defined ....................................356

16.16.7 Preserving eCommunications ................................357

16.16.8 Continuing Duty to Disclose ..................................359

16.16.9 Sanctions for Non-Compliance...............................359

16.17 Venue and Transfer ................................................. 359

16.18 The Statute of Limitations ...................................... 361

16.19 The Speedy Trial Act ............................................... 363

16.20 Presentencing Investigations and Reports .............. 364

_______________________________________________________

16.1 Introduction 

This chapter discusses how the federal courts operate, focusing 

on the law enforcement officer's role in obtaining the necessary 

documents, and following the necessary procedures, to have a 

defendant brought before a court to answer a criminal charge. 
302

The course is based on the Federal Rules of Criminal 

Procedure (F.R.Cr.P.) but focuses on only those rules that 

directly affect federal law enforcement officers.

16.2 Two Types of Federal Court Jurisdiction in Criminal 

Matters 

In matters of federal criminal law, federal courts have one of 

two types of power, also called "jurisdiction." The first type, 

called "original jurisdiction," is the power to preside over and 

decide matters from the time when the government files 

formal criminal charges until the end of sentencing. When 

federal courts with original jurisdiction preside over pretrial 

matters, trials, and sentencings, everything that they 

consider, including motions, evidence, live testimony, and 

arguments is preserved as part of that case's official "record."

The second type of jurisdiction is called "appellate 

jurisdiction," a power exercised by appellate courts. Once a 

court with original jurisdiction has ruled on all required 

matters, a defendant, and in more limited circumstances the 

government, may ask a court with appellate jurisdiction to 

examine the case record to decide if a lower court made a 

mistake of law. Because federal appellate courts are ordinarily 

only allowed to consider evidence and testimony that the 

defendant and the government presented to the court with 

original jurisdiction, witnesses do not testify before them and 

neither party is permitted to introduce new evidence. Instead, 

the appellant (the party bringing the appeal, usually a 

convicted defendant) can only rely on the lower court's official 

record to try to show that he or she should not have been 

convicted, that the first judge erred when ruling on a legal 

issue, or both.
303

16.3 The Organization, Powers, and Duties of the United 

States Courts 

This section describes the composition, duties, and 

organizational structure of the pertinent United States courts 

from highest to lowest.

16.3.1 The Supreme Court of the United States

The United States Supreme Court, which consists of nine 

presidentially appointed, senate-confirmed Justices with 

lifetime appointments, exercises only appellate jurisdiction in 

criminal matters and is the final authority on the 

interpretation of federal law. Virtually all cases considered by 

the Supreme Court are appeals from the decisions of United 

States Courts of Appeals or state courts.

No party to a case in a lower court has a right to have their 

case reviewed by the Supreme Court. Instead, the Supreme 

Court has the power to decide whether it will hear an appeal, 

a power that it exercises in only a small percentage of cases.

Appealing a federal criminal case to the Supreme Court 

requires that a party who loses an appeal before a Circuit 

Court of Appeals to file a motion called a Petition for a Writ of 

Certiorari ("to make certain"). Four of the nine Justices must 

agree to hear the petitioner's case before the Supreme Court 

issues a Writ of Certiorari. If the Supreme Court grants that 

Petition, then it will decide the appeal based on the case's 

record without hearing new testimony or otherwise allowing 

parties to introduce new evidence into court records.

Usually, all nine Justices participate in each case, and the 

Supreme Court makes its decisions by majority vote. When the 

Supreme Court reaches a decision, one Justice takes 

responsibility for writing the majority opinion. Other Justices 

who agree with the decision for different reasons or wish to 
304

make additional points may write concurring opinions. In 

contrast, Justices who disagree with the majority's ruling may 

also write separate opinions called "dissents." In the spring of 

each year, the Supreme Court proposes changes to the Federal 

Rules of Criminal Procedure. Those proposed changes to the 

Rules are automatically implemented unless Congress rejects 

or changes them.

16.3.2 Courts of Appeals – The Circuit Courts

Of the 13 United States courts of appeals, only 12 – the Courts 

of Appeals for the First through the Eleventh Circuits and the 

D.C. Circuit (referenced collectively here as the "Circuit 

Courts") -- are relevant to criminal prosecutions. Like the 

Supreme Court Justices, circuit court judges are also 

presidentially nominated, Senate- confirmed, and serve 

lifetime appointments.

Each individual Circuit Court, which exercises only appellate 

jurisdiction, is responsible for hearing appeals from cases tried 

by the district courts located within its geographic boundaries. 

Because of the way each Circuit Court's geographic boundaries 

are drawn, every district court located in a particular region or 

in the District of Columbia will send its appeals to the same 

Circuit Court, and all of the district courts within a single state 

are located in the same circuit. Like the Supreme Court, the 

Circuit Courts do not generally hear live testimony from 

witnesses or allow parties to introduce new evidence. 

Similarly to the Supreme Court, the judges decide by majority 

vote.

Unlike the Supreme Court, a criminal defendant has the right 

to demand that the circuit court responsible for the geographic 

area review a lower court's decisions. Importantly, although a 

circuit court's decision becomes the law that binds all federal 

courts in the geographic areas that make up that circuit, one 

circuit court’s decision is nothing more than "helpful advice" to 
305

courts located in a different federal circuit. Consequently, the 

law can differ from one circuit to another on particular legal 

issues.

16.3.3 United States District Courts

The United States District Courts are composed of a total of 94 

different geographic divisions known as "judicial districts" 

that are located throughout the United States and its 

territories. While many states contain more than one judicial 

district, the boundaries of a single judicial district, which are 

specified in the United States Code, never cross state lines. 

Officers must know the precise boundaries of the districts 

where they work or otherwise have duties to perform because 

certain tasks can only be performed in certain places. For 

example, duties such as conducting an initial appearance, 

obtaining an arrest warrant, applying for a search warrant, 

obtaining a grand jury subpoena, and holding a criminal 

defendant's trial, can only be done in a location where a 

particular court is authorized to act, that is, in the right 

"venue" or place.

Just like Supreme Court Justices and circuit court judges, 

United States district court judges are presidentially 

nominated, senate-confirmed, and appointed to their positions 

for life. Unlike the Supreme Court and the circuit courts of 

appeals, which exercise only appellate jurisdiction in criminal 

cases, district courts are the only federal courts with the power 

to conduct criminal trials in felony cases. Additionally, district 

courts must also conduct criminal trials in Class A 

misdemeanor cases where a defendant refuses to consent to 

trial before a federal magistrate judge.

Consequently, district courts are the first and the highest 

ranking of the two federal courts with original jurisdiction to 

conduct pretrial proceedings and trials, hear live testimony 
306

from witnesses, and admit documents, records, and other 

evidence into court records in criminal prosecutions.

Although district court judges also have the power to perform 

all of the following functions, they often delegate all or part of 

that power to federal magistrate judges. For example:

• Deciding matters that arise before a defendant is 

charged with a federal crime, including but not limited 

to whether to issue a criminal complaint and arrest 

warrant, whether to issue a search warrant, whether to 

order a reluctant witness to testify before a grand jury, 

and whether to appoint counsel to witnesses subpoenaed 

to testify before a grand jury;

• Presiding over pretrial proceedings and deciding issues 

that arise during those proceedings, including but not 

limited to initial appearances, identity hearings, 

removal proceedings, detention hearings, preliminary 

hearings, arraignments, discovery motions, motions to 

dismiss charging documents, motions to suppress 

evidence, other motions to exclude evidence at trial, and 

pretrial hearings;

• Taking pleas in capital felony; felony; Class A, B, and C 

misdemeanors; and infractions and imposing sentences 

on defendants convicted of those offenses; and

• Presiding over post-trial and conviction matters such as 

motions for new trial and habeas corpus cases.

Additionally, although district court judges must follow the 

Federal Rules of Criminal Procedure, each district court can 

also make additional local rules to govern procedural matters 

within the district. A local rule may, for example, establish a 

dress code, require that a certain procedure be accomplished 

within a certain period of time, or mandate document 
307

formatting requirements. Local rules may also require 

particular forms for arrest warrants and criminal complaints, 

search warrant applications and search and seizure warrants, 

and other documents. Consequently, officers should 

familiarize themselves with the local rules when arriving in a 

new district.

16.3.4 United States Magistrate Courts

All 94 United States district courts have a Magistrate Judge's 

Division consisting of one or more federal magistrate judges 

who work underneath and for the United States district courts. 

Unlike Supreme Court Justices, circuit court judges, and 

district court judges, federal magistrate court judges are 

appointed by the district court judges in the judicial district 

where they sit for four or eight-year terms. A federal 

magistrate judge's term is renewable so long as district judges 

remain satisfied with the magistrate judge's performance.

Although defendants charged with a Class A misdemeanor 

offense may insist on a trial before a district court judge, 
308

magistrate judges may try Class A misdemeanors with the 

defendant's consent. Magistrate judges also have the power to 

try petty offenses, Class B and C misdemeanors and 

infractions, that take place in the district, regardless of 

whether the defendant consents. Magistrate judges do not 

under any circumstances have the power to conduct felony 

trials.

Nonetheless, federal law enforcement officers should expect 

the overwhelming majority of their federal court business to 

occur before magistrate judges. Although practices vary from 

district to district, federal district judges ordinarily delegate 

responsibility for more mundane matters to the magistrate 

judges. Consequently, even though magistrate judges cannot 

hold trials in felony cases, they routinely conduct pretrial 

proceedings and hearings in prosecutions of the entire range 

of federal criminal offenses. Common delegations of 

responsibility to magistrate judges can include issuing 

criminal complaints and arrest warrants, issuing search 

warrants, and presiding over initial appearances, preliminary 

hearings, identity hearings, removal proceedings, detention 

hearings, and evidentiary hearings on motions to suppress 

evidence.

16.4 Beginning a Formal Criminal Prosecution in Federal 

Court 

Two classes of documents play critical roles in formal federal 

criminal prosecutions - charging documents and appearance 

documents. This section addresses each category in turn.

16.4.1 Charging documents

Charging documents are the tools that the government uses to 

transform a law enforcement officer's criminal investigation 

into a full-fledged, in-court criminal prosecution where a 

defendant must appear and answer charges. No federal 
309

criminal prosecution can begin without one of the following 

four charging documents, which are discussed in detail below: 

A Violation Notice (or Citation), a Criminal Complaint, a 

Criminal Information, and a Criminal Indictment

Although each of the four classes of charging documents have 

different requirements, characteristics, capabilities, and in 

some cases, limitations, they all have one thing in common. 

Regardless of its other characteristics, every charging 

document must, at a minimum, identify the offense or offenses 

with which the government has charged the defendant, 

usually by criminal statute title and section or by citing the 

appropriate federal regulation (for example, "18 U.S.C. § 

922(g)(1)" or "36 C.F.R. § 4.23").

Charging documents generally also have at least a brief 

description of the nature of the crime (for example "possession 

of a firearm by a convicted felon" or "operating a motor vehicle 

in a national park while under the influence of alcohol").

a. Violation Notice/Citation

A law enforcement officer has the power to issue a Violation 

Notice, also called a Citation. Violation Notices are similar to 

traffic tickets and may be used in charging someone with a 

petty offense.

b. Criminal Complaint

Depending on local practices, the government can (at least in 

theory) use a criminal complaint, also called a "complaint," to 

initiate formal criminal proceedings for any type of crime. Law 

enforcement officers are responsible for preparing criminal 

complaints, including the necessary affidavit and other 

documents accompanying the criminal complaint, prior to an 

initial appearance. Preparing the criminal complaint can be 

labor intensive; however, a law enforcement officer can usually 
310

complete it more quickly than a criminal indictment, which 

must be returned by a grand jury, or a criminal information, 

which is prepared and filed by an Assistant U.S. Attorney.

The Fourth Amendment chapter describes the process of 

preparing a criminal complaint, which requires an officer to 

prepare a written statement citing the statute or regulation 

that the defendant violated and outlining facts showing 

probable cause to believe that the defendant's conduct satisfied 

all of the required elements. Thereafter, the officer, usually 

with assistance from an Assistant U.S. Attorney, presents the 

criminal complaint to a federal judge with authority in the 

district where the crime took place for review and approval. If 

no federal judge is reasonably available, the officer may also 

present the complaint to a state or local judge with jurisdiction 

in the place where the crime happened. Presuming that the 

court finds the written statement sufficient, the officer then 

signs the complaint under oath in the judge's presence, and the 

judge thereafter signs the complaint as well.

Criminal complaints suffer from several disadvantages. First, 

and most importantly, charges filed by criminal complaint are 

only valid for 30 days. Consequently, law enforcement officers 

should think of criminal complaints as temporary fixes best 

suited to solving only pressing, time-sensitive problems such 

as these:

• A law enforcement officer who has probable cause makes 

a warrantless arrest for a felony or misdemeanor. 

Because applicable constitutional law mandates that a 

charging document must be filed no later than 48 hours 

after a warrantless arrest (although 24 hours is 

preferred), and because obtaining a criminal complaint 

can be done relatively quickly, the officer prepares a 

criminal complaint and supporting affidavit and swears 

to it before a judge prior to the defendant's initial 

appearance;
311

• A law enforcement officer is conducting a long term, 

felony fraud investigation. Although the government is 

not ready to present the case to a grand jury because the 

investigation is not complete, the officer has probable 

cause to arrest the primary target. The officers learns 

that the target has purchased a one-way airline ticket to 

fly to another country from which extradition is not 

possible. Consequently, the officer prepares a criminal 

complaint and arrest warrant so that investigators can 

arrest the target before the target flees the following 

afternoon; and,

• Law enforcement officers conducting a wiretap 

investigation in a drug case have sufficient evidence to 

charge a local overseer of a drug stash house with drug 

trafficking, but their investigation of local cartel 

managers is ongoing. After intercepting cartel managers 

discussing plans to harm the stash house overseer, 

investigators prepare a criminal complaint and arrest 

warrant and arrest the overseer before his conspirators 

can harm him.

Second, defendants charged by criminal complaint stand to 

learn more about the government's evidence and witnesses at 

an earlier time than defendants charged by criminal 

indictment or information. An affidavit supporting a criminal 

complaint must contain a narrative of facts showing probable 

cause, a requirement that does not apply to a criminal 

indictment or information. Because the defendant is entitled 

to a copy of the complaint and the affidavit at or before initial 

appearance, which takes place before the government is 

obligated to provide discovery, a defendant charged by 

complaint gets premature discovery.

Moreover, every defendant charged by complaint is entitled to 

a preliminary hearing unless a criminal indictment or 
312

information is filed before the time the court schedules the 

hearing. Because the defense has the right to cross examine 

the officer or officers who must testify at the preliminary 

hearing, the defendant charged by complaint has a second, 

premature opportunity to probe the case. For these reasons, 

most federal prosecutors prefer not to charge by criminal 

complaint unless necessary.

c. Criminal Information

A criminal information, also called an "information," is a 

charging document that an Assistant U.S. Attorney is 

responsible for preparing and may, in non-felony cases, decide 

unilaterally to file with the court. Unlike a criminal complaint, 

an information usually only contains a citation to the criminal 

statute or statutes that the defendant violated, a few words 

describing the crime, and a listing of elements that the 

government must prove to convict the defendant.

Although the government is free to charge Class A, B, and C 

misdemeanors and infractions by information and does so 

routinely, it may only charge a felony crime by information if 

the defendant waives his or her constitutional right to be 

charged by a grand jury's indictment. Moreover, a defendant 

charged with a capital felony must be indicted by a grand jury, 

a requirement that cannot be waived.

d. Criminal Indictment

Although the content of a criminal indictment, also called an 

"indictment," closely resembles that of an information, only a 

grand jury can approve of and file an indictment. A grand jury 

consists of 23 members of the community empaneled by a 

District Court judge to sit for a period of 18 months. The grand 

jury may return an indictment only when 12 or more of its 

members find probable cause to believe that the defendant 

committed the crime or crimes that the indictment describes.
313

Although the government may initiate a felony prosecution 

with a criminal complaint, it may not take a felony case to trial 

unless a grand jury returns an indictment or the defendant 

waives the right to be indicted. Moreover, an indictment is not 

waivable where a defendant is charged with a capital felony 

and no court may hold a trial on a capital felony unless a grand 

jury has returned an indictment.

16.4.2 Appearance Documents

When a defendant charged by complaint, information, or 

indictment is not already in custody following a warrantless, 

probable cause arrest, the Assistant U.S. Attorney and the 

investigating agent must decide how to ensure that the 

defendant appears in court and answers the formal charges. 

The government ordinarily has two choices - arrest warrant or 

a summons - either of which becomes available upon request 

once a judge signs a criminal complaint, an Assistant U.S. 

attorney files a criminal information, or a grand jury returns 

an indictment. Both the arrest warrant and the court-issued 

summons are exercises of the court's power to compel a 

defendant to appear.

a. Arrest Warrant

An arrest warrant is a command that a court issues to 

authorized law enforcement officers to arrest a particular 

person and bring them to an initial appearance without 

unnecessary delay. The arrest warrant identifies not only the 

person to be arrested but also the crime charged.

If the officer who arrests the defendant has the warrant or a 

copy of it, he or she must show it to the defendant. If the officer 

does not have a copy of the arrest warrant, they must tell the 

defendant that the warrant exists and the nature of the charge 
314

on the warrant. At the defendant's request, the officer must 

show the warrant to the defendant as soon as possible.

After executing an arrest warrant, the officer must make a 

return (report) to the judge before whom the defendant has the 

initial appearance. If the arrest was made pursuant to an 

NCIC (National Crime Information Center) notice, then the 

arresting officer or the prosecuting attorney should contact the 

district that issued the warrant to obtain a faxed copy prior to 

the initial appearance.

b. Summons

A summons is a command that a federal court issues to a 

defendant who has been formally charged with a crime by 

complaint, information, or indictment. The summons, which is 

served by a United States Marshal or other federal law 

enforcement officer, commands the defendant to appear before 

the court at a stated time and place to answer the formal 

charges.

A defendant who is the subject of a summons is not arrested, 

but instead, comes to court under his or her own power. 

Because the court uses either an arrest warrant or a summons 

to compel a defendant to appear and answer formal, criminal 

charges, mere knowledge that a defendant is the subject of a 

criminal complaint, criminal information, or indictment does 

not, standing alone, authorize a law enforcement officer to 

make an arrest.

Although some Violation Notices and Citations that federal 

law enforcement officers issue for Class B or Class C 

misdemeanors or petty offenses may contain a "summons" 

directing the recipient to come to court at a specific time and 

place, a law enforcement officer cannot access the court's 

power to require a defendant to appear and answer charges 

without a complaint, information, or indictment.
315

U.S. Marshals and other federal officers serve summonses by 

personally delivering a copy of to the defendant. If the 

defendant cannot be found, a summons is served by leaving a 

copy at the defendant's residence or usual place of abode with 

a person of "suitable age and discretion" who lives there. When 

a summons is not personally served on the defendant, a copy 

of the summons must also be mailed to the defendant's last 

known address. The officer who serves a summons must 

complete the back of the summons stating how and when the 

summons was served. Filling out the back of the summons is 

known as making a "return" of the summons.

Before trial, the government, the defendant, and the court 

must know exactly the offenses with which the defendant is 

charged. The charging document informs the parties of the 

exact charges. The charges at trial may be different than the 

ones in the complaint or information that was used at the 

initial appearance or to obtain an arrest warrant or summons. 

The charges may also be different than the ones for which the 

defendant was originally indicted, because the defendant may 

have been indicted for additional offenses, or the AUSA may 

have obtained a superseding indictment.
316

16.4.3 Summary of Offenses, Courts, and Charging 

Documents Sufficient for Trial 

Offense Type 

18 U.S.C. § 

3559

Maximum 

Sentence 

Trial Court Charging 

Documents 

(required to try 

defendant) 

Capital

Felony 

Death District

Court Indictment

(not waivable)

Felony More than 1

year 

District

Court 

Indictment or 

Information 

(with waiver)

Class A 

Misdemeanor 

More than 6 

months, up 

to 1 year 

District 

Court 

(unless 

waived)

Information or 

Complaint 

Class A 

Misdemeanor 

More than 6 

months, up 

to 1 year

Magistrate 

Court (with 

waiver)

Information or 

Complaint 

Class B 

Misdemeanor 

6 months or 

less, but 

more than 

30 days

Magistrate 

Court 

Information, 

Complaint, or 

Violation 

Notice/Citation

Class C 

Misdemeanor 

30 days or 

less, but 

more than 5 

days

Magistrate 

Court 

Information, 

Complaint, or 

Violation 

Notice/Citation

Infraction 5 days or 

less

Magistrate

Court

Violation

Notice/Citation

Although, at least in theory, the government can probably try 

Class A, B, and C misdemeanors and infractions with an 

indictment, and although it can probably also try an infraction 

with an information or a complaint, it would be extremely 

unlikely to do so. 
317

16.5 The Initial Appearance 

16.5.1 The Initial Appearance

A defendant’s first appearance before a federal judge will be at 

a proceeding called an initial appearance. While a district 

court judge could conduct the initial appearance, a magistrate 

judge usually conducts them even in felony cases.

16.5.2 Bringing a Defendant Before a Magistrate Judge

a. Warrantless Arrest

Officers typically make warrantless arrests when they have 

probable cause that the defendant committed a felony offense 

or when a misdemeanor was committed in their presence. 

Since the defendant has the right to know of the charges for 

which he has been arrested, the officer must prepare a 

criminal complaint after the defendant is arrested and before 

taking the defendant to the initial appearance. (Felony and 

misdemeanor arrest authority is covered in this book’s chapter 

on the Fourth Amendment.)

b. Arrest with a Warrant

Officers may obtain arrest warrants in several ways.

1. With a Criminal Complaint

The officer prepares a criminal complaint, swears to it before 

a magistrate judge and requests an arrest warrant.

2. With an Indictment

If the defendant has been indicted by a grand jury, the 

indictment will be filed with the clerk of the court in that 
318

district. The clerk of the court will issue an arrest warrant 

based on the charge or charges contained in the indictment.

3. With an Information

If the AUSA has filed an information, an officer may obtain an 

arrest warrant by presenting the information to a judge and 

requesting a warrant.

c. Appearance on a Summons

Instead of obtaining an arrest warrant with a criminal 

complaint, indictment, or information, officers may obtain a 

summons. The summons will direct the defendant to appear in 

court for an initial appearance without being arrested.

16.5.3 Non-Federal Judges and Initial Appearances

Federal law permits certain state and local judicial officers to 

perform some federal court functions to include swearing 

officers to criminal complaints, issuing search or arrest 

warrants, and conducting initial appearances. Federal law 

enforcement officers should avoid using state or local judges to 

issue federal warrants or conduct federal proceedings except 

in exigent circumstances and only after first coordinating with 

your AUSA. 18 U.S.C. § 3041.

16.6 Initial Appearance: The Officer’s Responsibility 

After an arrest but before the initial appearance, the officer 

must take certain steps to secure and prepare the defendant 

for processing by the courts. Such steps include: a search 

incident to arrest; booking procedures (fingerprinting, 

photographing, preparing various forms); transporting the 

defendant to a federally approved detention facility; a possible 

inventory of impounded property; and notifying the Pretrial 

Services Office of the arrest and the location of the defendant. 
319

If the arrest was without a warrant, and a criminal complaint, 

indictment, or information has not already been prepared, the 

officer must prepare a criminal complaint. 

16.6.1 Requirement and Timing 

F.R.Cr.P. 5a states that, upon arrest, a suspect must be taken 

to an initial appearance before a magistrate judge without 

unnecessary delay. Failure to do so can have an adverse effect 

on statements made during a post-arrest interview. First, of 

course, any statement taken has to be voluntary. Proper 

Miranda warnings must be given and a valid waiver obtained. 

Assuming this has been done, the courts may then look at 

whether there was a delay in getting to the magistrate. 

By statute, Congress created a “safe zone” for the first six (6) 

hours after an arrest. In accordance with 18 U.S.C. § 3501(c), 

statements taken during the first six hours will not be 

suppressed because of any delay. That six-hour safe zone can 

be extended if the delay is reasonable given means of 

transportation and distance to the magistrate. Thus, a 

statement taken nine (9) hours after arrest may still be usable 

if extensive travel was required to get to the magistrate for the 

initial appearance. 

A statement will not automatically be suppressed just because 

it is made after that six-hour safe zone. After the six hours, 

courts will simply begin to assess whether any delay is 

reasonable and necessary. For example, if a defendant had to 

be taken to the emergency room for treatment, then that delay 

would be deemed necessary, and any statements made could 

probably still be used at trial. If there is a problem with 

availability of the magistrate, officers should coordinate with 

an AUSA as to what should be done. 

Delays solely for the purpose of continuing or conducting an 

interrogation can be seen by a court as unnecessary and 
320

statements may be lost. So, if a magistrate is readily available, 

and a two-hour interview is begun five hours after an arrest, 

statements given during the first hour will be usable, but those 

made in the second hour might not be.

The Supreme Court has never defined exactly what 

“unnecessary delay” is, but a good rule of thumb is that the 

officer should ordinarily have the defendant in court for an 

initial appearance the next time the Magistrate Judge holds 

court following the defendant’s arrest. The officer should be 

aware of any particular requirements in this regard set forth 

in the district’s Local Rules.

The courts have given examples of unnecessary delay as: delay 

for the purpose of gathering additional evidence to justify the 

arrest; delay motivated by ill will against the arrested 

individual; or delay for delay’s sake. If there is the possibility 

it may take longer than 48 hours to have the defendant at the 

initial appearance, you should immediately notify the AUSA 

or the duty AUSA after hours. If a federal judge or magistrate 

judge is unavailable, the officer may take the defendant before 

a local or state judge, mayor of a city, or other official 

designated in 18 U.S.C. § 3041 for an initial appearance. This 

alternative should not be used unless approved by the AUSA.

16.6.2 Purpose and Procedure

The primary purpose of the initial appearance is to inform the 

defendant of the charges for which the arrest was made and 

the procedural rights in the upcoming trial. Pre-trial release 

(bail) may also be considered at this time.

16.6.3 Defendant’s Rights at the Initial Appearance

The judge informs the defendant of the charge usually by 

providing the defendant with a copy of the indictment, 

information, or criminal complaint, or by having the AUSA 
321

describe the charges pending against the defendant. The 

defendant will be told of his right to retain counsel, and if the 

defendant cannot afford counsel, the right to have counsel 

appointed. The defendant will also be told how he can secure 

pretrial release, the defendant’s right not to make a statement, 

and that any statement made can be used against him.

16.6.4 Pretrial Release or Detention

The defendant can be released or detained pending the trial 

date. This determination is made by applying the Bail Reform 

Act, 18 U.S.C. §§ 3141 - 42. In most cases, there is a 

presumption that the defendant will be released on bond with 

conditions. The government may only overcome that 

presumption by demonstrating to the court that the defendant, 

if released on bond, would pose a risk of flight or danger to the 

community. Where the charges are narcotics related (Titles 21 

or 46) and have a maximum penalty of ten years or more, there 

is a rebuttable presumption that the defendant, if released, 

will pose the risk of flight and danger to the community. In 

that event, the law affords the defendant the opportunity to 

rebut that presumption.

The process of making the determination is as follows:

a. Pretrial Services Interview and Recommendation

Prior to being taken to the initial appearance, the Pretrial 

Services Office within the district collects information from the 

defendant and other sources. It then recommends to the judge 

whether a defendant should be detained or released. The 

recommendation may include conditions of release. Judges 

often follow the recommendations of the Pretrial Services 

Office. If that office recommends release pending trial, and the 

government believes that detention is warranted, the officer 

should inform the AUSA immediately so the AUSA can decide 

whether to request a detention hearing. The report prepared 
322

by the Pretrial Services Office is confidential, but it may be 

released to the AUSA. A copy will not automatically be given 

to the officer.

b. Judge’s Options

At the initial appearance, the judge may:

• Release the defendant on his own recognizance;

• Release the defendant on condition or conditions that 

may include bail;

• Conduct a detention hearing if the attorneys for both 

sides are prepared to proceed; or

• Temporarily detain the defendant until the detention 

hearing can be held.

c. Conditional Release

The judge has wide discretion in selecting conditions that are 

reasonably necessary to assure the defendant’s appearance 

and the safety of others and the community. Every release is 

conditioned upon the defendant’s not committing a crime 

during the period of release. There are many other options the 

judge may choose such as: maintaining employment; travel 

restrictions; restrictions on place of residence and associating 

with other persons to include victims and witnesses; curfews; 

drug and alcohol use restrictions; medical evaluation and 

treatment requirements; bail; limited custody when the 

defendant is not at work; and “tethering” by electronically 

monitoring the defendant’s location.
323

16.6.5 Detention Hearings and Decision

The decision to detain the defendant in custody is made at a 

detention hearing. At that hearing, the defendant is permitted 

to present evidence, call witnesses, cross-examine other 

witnesses, and be represented by counsel.

16.6.6 Release is Preferred

The Bail Reform Act requires the pretrial release of a 

defendant on either his personal recognizance or an unsecured 

appearance bond (neither of which requires a deposit of money 

or property as security), subject to conditions while on release, 

unless the judge determines release: (1) will not reasonably 

assure the appearance of the defendant (flight risk), or (2) will 

endanger the safety of any other person or the community. The 

judge will consider the seriousness of the charged offense, the 

strength of the case, criminal history, and the possible danger 

that the defendant may present to the community.

16.6.7 Bail Jumping

If the defendant fails to appear in court after being released, 

the judge has many options, and the government can, and 

usually does, seek an indictment charging the defendant with 

a violation of the federal Failure to Appear statute, also known 

as “bail jumping.” If later convicted of bail jumping, the 

sentence for bail jumping will be in addition to (consecutive 

sentence) any sentence for the offense for which the defendant 

failed to appear. 18 U.S.C. § 3146.

16.7 Initial Appearance: Which District? 

If the defendant is arrested in the district where the crime 

occurred, the officer must take the defendant for his initial 

appearance in that district. When possible, an arrest should be 

made in the district where the offense was committed because 
324

the officers, AUSA, and judge will already be familiar with the 

case, and it will be easier to obtain witnesses for any necessary 

proceedings.

16.7.1 Initial Appearance Options

When the defendant is arrested in any district other than the 

one in which the crime occurred, there are several options for 

where to take the defendant for the initial appearance, 

depending on the proximity of other districts and how quickly 

the initial appearance can be held. The officer may take the 

defendant to a district that meets the following criteria:

• The district in which the defendant was arrested, or

• An adjacent district (a district that touches the district 

of arrest) if:

o The initial appearance can occur more promptly in 

the adjacent district, or

o The offense was committed in the adjacent district 

and the initial appearance can be held on the same 

day as the arrest.

16.7.2 Removal and Identity Hearings

When the initial appearance is held in a district other than one 

in which the crime occurred, the judge must conduct a 

removal, and often, an identity hearing.

Removal is the process of transferring the defendant to the 

district where the crime occurred to stand trial. If the 

defendant was arrested without a warrant in hand, then the 

officer must obtain an arrest warrant from the district where 

the crime occurred. The documents can be sent by facsimile.
325

As part of the removal hearing process, the judge must 

determine that the defendant is the same person named in the 

arrest warrant. This will be done at an identity hearing. When 

the defendant admits his true name, this requirement is 

satisfied. Otherwise, the AUSA may have to produce witnesses 

who can identify the defendant or match descriptions from

other evidence.

16.8 Diplomats 

16.8.1 Diplomatic Immunity

Diplomats are representatives of foreign countries who work 

in the United States on behalf of the government of that 

foreign country. In order to enjoy status as a diplomat, a 

foreign government representative must be officially 

recognized by the U.S. Government.

Diplomatic immunity is based on international law and 

treaties that the United States has made with other nations. 

A person with diplomatic immunity is not subject to the 

jurisdiction of U.S. courts either for official, or, to a large 

extent, personal activities and therefore may not be arrested 

or prosecuted for any offense no matter how serious.

The same laws that protect foreign diplomats in the U.S. also 

protect U.S. diplomats overseas.

16.8.2 Verifying the Status of Diplomats

There are many levels of diplomatic immunity; this chapter 

will only discuss those with full diplomatic immunity. When 

encountering suspects who claim diplomatic immunity, 

officers should inform the suspect they will be detained until 

their identity and diplomatic status has been verified. Most 

diplomats carry diplomatic passports or identification cards 

issued by the U.S. Department of State. Nevertheless, officers 
326

should verify the claimed status of every person by calling the

Department of State at the Diplomatic Security Command 

Center (DSCC) at (571) 345-3146. DSCC will respond with 

diplomatic status and degree of immunity.

If the State Department does not verify the person’s diplomatic 

status, the officer may treat the person as any other suspect.

16.8.3 Diplomats: After Verifying Diplomatic Status

• Do not arrest.

• Investigate and prepare a report.

• Do not use handcuffs unless the diplomat poses an 

immediate threat to safety.

• Do not search or frisk the person, their vehicle, or 

personal belongings unless necessary for officer safety.

16.8.4 Diplomats: Traffic Incidents

 

Law enforcement officers can stop and cite diplomats for 

moving traffic violations. This is not considered detention or 

arrest. The diplomat may not be compelled to sign a citation. 

In serious traffic incidents (DWI, DUI, and accidents involving 

personal injury) the officer may offer a field sobriety test, but 

the diplomat may not be required to take it. Vehicles may not 

be impounded or booted, but may be towed to prevent 

obstructing traffic. Intoxicated diplomat- drivers should be 

offered a ride, a taxi, or to have a friend transport them; 

however, the diplomat may refuse the offer.

A diplomat might refuse offers to assist with transportation or 

other arrangements and yet still be too intoxicated to drive or 

walk home. In such instances, officers should contact 

supervisors and call upon the diplomat’s embassy to advise 
327

them of the situation. The diplomat’s government may take 

action on its own or direct its diplomat to accept offers of 

assistance. If the diplomat persists in driving while 

intoxicated, the officer must use common sense to secure the 

car keys or perhaps block the car so the diplomat cannot drive 

it. The officer should not stand by while an intoxicated person 

attempts to drive.

In other situations, a diplomat may still present a possible 

danger to others. For example, during a domestic assault, the 

diplomat may still be trying to strike a spouse. Again, common 

sense should prevail. The officer should notify a superior and 

the diplomat’s embassy and offer protection to the potential 

victim of an assault. If the diplomat presents a threat of injury 

to the officer or another, use reasonable force to prevent injury. 

However, the officer still may not arrest.

The officer should forward reports of diplomatic incidents to 

the U.S. Department of State as soon as possible after the 

incident. Copies of any citations or charges should accompany 

each report. The addressee for incident reports, etc. is 

Protective Liaison Division, DSS – fax (202) 895-3613.

By law, a foreign embassy or diplomatic mission must be 

treated as foreign (non-U.S.) soil. Even with a search or arrest 

warrant, the officer may not enter these places without 

permission from the foreign nation.

 

16.9 Foreign Nationals – Compliance with the Vienna 

Convention on Consular Relations (VCCR) 

The 1963 Vienna Convention on Consular Relations (VCCR) 

established the protocol for the treatment of foreign nationals 

arrested in the United States as well as for U.S. citizens 

arrested by foreign governments. The agreements contained in 

the VCCR have the status of treaties in international law. The 

U.S. Constitution provides that treaties, once adopted, have 
328

the force of law in the United States. Therefore, the provisions 

of the VCCR are binding on federal, state, and local 

government officials.

International legal obligations exist to assure foreign 

governments that the United States will extend appropriate 

consular services to their nationals in the United States. These 

are mutual obligations that also pertain to American citizens 

abroad. For purposes of consular notification, a “foreign 

national” is any person who is not a U.S. citizen. The following 

situations create obligations for law enforcement officers.

16.9.1 Arrests/Detentions – Advising of Right to 

Consular Notification

Whenever a foreign national is arrested or detained in the 

United States, there are legal requirements to ensure that the 

foreign national’s government has the opportunity to offer 

him/her appropriate consular assistance. All foreign nationals 

in custody must be told of the right of consular notification and 

access. In most cases, the foreign national then has the option 

to decide whether to have consular representatives notified of 

the arrest or detention. Neither the gravity of the charges, nor 

the immigration status of the individual, are relevant to the 

consular notification decision; the only triggering factor is 

arrest or detention of a non-U.S. citizen.

a. Requested Notification (Basic Rule)

If the detained foreign national is a national of a country that 

is not on the mandatory notification list, the “Basic Rule” 

applies: the officer must inform the foreign national without 

delay of the option to have his/her government’s consular 

representatives notified of the detention. If the detainee 

requests notification, a responsible detaining official must 

ensure that notification is given to the nearest consulate or 

embassy of the detainee’s country without delay.
329

b. Mandatory Notification (Special Rule)

In some cases, however, the foreign national’s consular 

officials must be notified of an arrest and/or detention 

regardless of the foreign national’s wishes. Those countries 

requiring mandatory notification are identified in the State 

Department list of “Special Rule” (mandatory notification) 

countries. If a national of one of these countries is arrested or 

detained, notification to the individual’s consular officials 

must be made without delay.

Whether the case falls under the “Basic Rule” or the “Special 

Rule,” the officer should always keep a written record of all 

notification actions taken, including initial provision of 

information to the detained individual about the right of 

consular notification and access.

16.9.2 Consular Access

Detained foreign nationals are entitled to communicate with 

their consular officers. Any communication by a foreign 

national to his or 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 consular access and 

communication generally must be exercised subject to local 

laws and regulations.

16.9.3 Deaths

When U.S. government officials become aware of the death of 

a foreign national, the nearest consulate of that national’s 
330

country must be notified without delay. This will permit the 

foreign government to make an official record of the death for 

its own legal purposes.

16.9.4 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.

16.9.5 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.

16.10 Members of Congress 

16.10.1 Privilege from Arrest

Members of Congress are privileged from arrest while 

Congress is in session and while attending, or going to and 

from, sessions of Congress. (Art.1, Section 6 of the U.S. 

Constitution.) The privilege does not prohibit issuing traffic 

and other citations, investigating and preparing reports, 

serving a subpoena or summons, or prosecution for a crime.

16.10.2 Exceptions to the Privilege

Even if attending congressional sessions or on the way to and 

from them, a member of Congress may be arrested for a felony 

or breach of the peace. Generally, a breach of the peace is an 

offense that involves violence. Because “breach of the peace” is 

a fluid term and subject to constant interpretation, officers 

should investigate and document the breach of the peace and 

then submit findings to superiors. No arrest should be made 
331

unless authorized by superiors in consultation with the U.S. 

Attorney’s Office. 

16.11 Juveniles 

A juvenile is a person who is under the age of 18. There are 

special procedures that must be followed when arresting a 

juvenile: 

• Immediately advise the juvenile of his or her Miranda 

rights in words that the juvenile can understand even if 

there is no intention to question the juvenile; (Miranda 

v. Arizona, 384 U.S. 436 (1966).)

• Immediately notify the AUSA of the juvenile’s arrest and 

the charge(s); 

• Immediately notify the parents or guardian of the 

juvenile’s arrest, the charges, and the juvenile’s legal 

rights under Miranda. (It is the officer’s responsibility to 

make a good faith effort to notify the juvenile’s parents 

or guardian. If the parent or guardian requests to speak 

with the juvenile, the government must allow it), and 

• Take the juvenile forthwith before a United States 

magistrate judge. (“Forthwith” requires more speed 

than “without unnecessary delay”), and 

• Do not make a media release. The government should 

not make public the name or the picture of any juvenile 

(or any reports, documents, fingerprints, and the like 

pertaining to them) without prior approval of the district 

court. (See 18 USC §§ 5031-5038.)

The officer may and should investigate the case as any other. 

If the juvenile understands and waives his Miranda rights, the 

officer may question the juvenile. Any statement obtained 
332

lawfully and without delay in bringing the juvenile before the 

magistrate judge will be admissible in court.

When an officer intends or expects to arrest a juvenile, he or 

she should attempt to obtain the approval and guidance of the 

AUSA before the arrest.

16.12 Preliminary Hearings and Arraignments 

16.12.1 Preliminary Hearings

A preliminary hearing is a proceeding during which the 

government is required to produce evidence from which the 

court may conclude whether or not the defendant’s arrest was 

based upon probable cause. F.R.Cr.P. 5.1(a) requires that the 

magistrate judge hold a preliminary hearing for all defendants 

charged in a criminal complaint with a felony or class A 

misdemeanor, that is, defendants other than those charged 

with a petty offense, with the following exceptions:

• The defendant waives (gives up the right to) the hearing.

• The defendant was already indicted, or charged by 

information, before the time the preliminary hearing is 

to be held.

• The government dismisses the case on its own. A 

defendant who has been detained in custody must then 

be released.

a. The Preliminary Hearing Procedure

At a preliminary hearing, the magistrate judge will hear 

evidence to determine whether there is probable cause to 

believe that an offense has been committed and that the 

defendant committed it. The AUSA will call witnesses and 

may offer other evidence. The officer may testify at 
333

preliminary hearings. The defense may cross-examine 

government witnesses, call its own witnesses, and offer 

evidence. Because the preliminary hearing is not a trial, there 

is no jury and hearsay is admissible. Because the preliminary 

hearing is not a suppression hearing, the defense may not 

object on the grounds that evidence was unlawfully seized. 

Testimony given at the preliminary hearing is recorded and 

could be used to impeach testimony at a later proceeding.

b. The Preliminary Hearing Timing and Results

If the judge finds there is probable cause to believe an offense 

has been committed and the defendant committed it, the 

defendant will be required to appear for further proceedings. 

If the judge decides there is no probable cause, the judge will 

dismiss the complaint. If the defendant is in custody, he will 

be released. A finding of no probable cause does not prevent a 

subsequent prosecution. The investigation may continue, and 

the AUSA may still seek an indictment or file an information.

The preliminary hearing must be held not later than 14 days 

after the initial appearance if the defendant is detained in 

custody, or 21 days after the initial appearance if the 

defendant has been released from custody. Generally, a 

preliminary hearing is held in the same district as the initial 

appearance. When a person is arrested in a district other than 

where the crime occurred and the initial appearance is held in 

the district of arrest, the defendant may elect to have the 

preliminary hearing in the district where the crime occurred.

Preliminary hearings consume resources, expose government 

witnesses to cross-examination, may compromise sensitive 

information, and may force the government to disclose 

information prematurely. Processing a case in a way to avoid 

having a preliminary hearing is a legitimate tactic. For 

example, if an indictment or information is obtained before the 

arrest, the defendant is not entitled to a preliminary hearing. 
334

In many situations, however, it may be appropriate to arrest 

before the indictment or information is obtained, as illustrated 

by the below examples:

• The danger that a defendant may harm another, flee, or 

destroy evidence may require an immediate arrest.

• Before an indictment can be obtained, the government 

may realize the defendant may be in possession of 

evidence at a particular time and wish to take advantage 

of a search incident to arrest.

16.12.2 Arraignment

The purposes of an arraignment are: (1) to ensure that the 

defendant has a copy of the indictment or information; (2) 

either to read the charging document to the defendant or to 

advise the defendant of the substance of the charges; and (3) 

for the defendant to enter a plea to those charges.

An arraignment does not occur until formal charges are filed 

against the defendant in the form of an indictment or an 

information. The judge may permit a defendant to waive 

formal arraignment if the defendant requests waiver, pleads 

not guilty, and certifies receipt of a copy of the indictment or 

information.

At the time of the arraignment, the defendant, through 

defense counsel, will typically enter a plea of not guilty. The 

court will accept the not guilty plea and, in response to it, will 

enter an order requiring the exchange of discovery by the 

government and defense counsel in preparation for trial.
335

16.13 The Grand Jury 

16.13.1 Purpose of the Grand Jury

A grand jury is an independent body that operates under the 

supervision of a district court judge and under the direction of 

an AUSA. A grand jury performs two essential functions.

First, grand juries return indictments. The Fifth Amendment 

to the U.S. Constitution provides that “No person shall be held 

to answer for a capital, or otherwise infamous crime, unless on 

a presentment or indictment of a Grand Jury....” Accordingly, 

if 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. F.R.Cr.P. 7(a)(1).

Second, a grand jury may investigate crimes within its district. 

Grand juries have broad powers to investigate crime and may, 

through the use of grand jury subpoenas, obtain testimony, 

documents, and other evidence that officers cannot. If the 

grand jury concludes an investigation by finding probable 

cause that a crime was committed and that a particular 

person, or persons, committed that crime, it may then return 

an indictment naming that person or persons as defendants. A 

grand jury may not investigate civil matters.

16.13.2 Selection, Empanelment, and Structure

Grand jurors are selected by a random drawing, usually by the 

Clerk of Court, from a “pool” consisting of registered voters. 

Grand jurors must be U.S. Citizens, at least 18 years of age, 

proficient in English, and have no felony convictions or 

pending prosecution. Federal grand juries consist of 23 such 

persons who generally serve for 18 months; however, the court 

may discharge the jury earlier or extend the jury’s service six 

additional months. When the grand jury sits, there must be a 

minimum of 16 grand jurors present.
336

16.13.3 The Grand Jury Process

The grand jury usually meets in a special, private room. Grand 

jury proceedings are formal, but less formal than a trial. 

Unlike a trial jury, a grand jury does not sit to hear just a 

single case. Once a grand jury starts hearing evidence on a 

particular investigation, they do not have to finish that 

investigation before they begin another. A grand jury could 

hear evidence on case A in the morning, case B in the 

afternoon, and then continue on case A again the following 

day. A grand jury may not meet every day, and a grand jury 

may not always be in session in your area.

The grand jury serves under the guidance of an AUSA. While 

the grand jury is empaneled by a District Court judge and 

legally functions under the judge’s supervision, the AUSA 

presents the case to the grand jury, calls and examines 

witnesses, issues subpoenas in the name of the grand jury, and 

presents the proposed indictment.

Grand jury proceedings are secret and not open to the public. 

Grand jury secrecy ensures that untested and uncorroborated 

information is not leaked to the public. Secrecy also helps 

witnesses be more forthcoming and preserves the integrity of 

a criminal investigation. (The details of grand jury secrecy 

principles are discussed in a later section.) When testimony is 

presented to the grand jury, only certain people may be 

present: the AUSA; one witness at a time; an interpreter (if 

needed); a court reporter; and the members of the grand jury. 

Officers who testify will not be present to hear the testimony

of other witnesses. When the grand jury is deliberating and 

voting on the indictment, only the grand jury members may be 

present.

Neither the target (possible defendant) of a grand jury, nor the 

target’s attorney, has the right to be present. Infrequently, the 

AUSA may invite the target to testify before the grand jury. 
337

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. The target may refuse 

to testify if the testimony would be incriminating. The target 

could be given immunity and compelled to testify, but that is 

rarely done because immunized testimony cannot be used 

against the target at a later date. 

The AUSA presents evidence to the grand jury. The evidence 

will consist of witnesses, documents, and other evidentiary 

items that are subpoenaed by the grand jury or that may be 

voluntarily submitted by a witness before the grand jury. The 

grand jurors may also ask questions. Because there is no 

defense counsel present, there is no cross-examination. 

Because a grand jury hearing is not a trial, the Federal Rules 

of Evidence (F.R.E.) (with the exception of privileges) do not 

apply. This means that hearsay may be used, and that the 

AUSA is not required to lay a full foundation for evidence. In 

a “routine” case, a one-officer presentation may be sufficient 

even though many officers worked the case. Because the 

burden of proof at a grand jury is only probable cause, an 

AUSA might not present all the available evidence. 

Nevertheless, the Department of Justice policy is that 

indictments are not to be sought unless the responsible AUSA 

has determined that the evidence, viewed in its totality, 

constitutes proof beyond a reasonable doubt of the defendant’s 

guilt, the threshold of proof necessary for the trial jury to 

convict. 

Though grand jury proceedings are secret, if a witness testifies 

at both a grand jury and the trial, the defense will receive a 

copy of the witness’s grand jury testimony under the Jencks 

Act (addressed later in this chapter). Grand jury witnesses 

must be accurate in their testimony because they may and 

likely will be cross-examined concerning any conflicts between 

trial and grand jury testimony. 
338

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.

16.13.4 Sealed Indictments

Ordinarily, an indictment is returned in open court making it 

public. The AUSA may request that the judge keep the 

indictment secret until the defendant is in custody. This is a 

valuable tool. In many cases, especially those involving 

multiple defendants, if indictments are made public or 

defendants are arrested at different times, other defendants 

may flee or destroy evidence. Officers may also be involved in 

cases with indictments being sought in several districts.

By having an indictment sealed, the government may 

coordinate multiple arrests to avoid tipping off defendants. 

F.R.Cr.P. 6(e)(4).

16.13.5 Post-Indictment Grand Jury Powers

The purpose of a grand jury is to investigate crime and return 

indictments. Once an indictment has been returned on a 
339

charge, the power of the grand jury to investigate that charge 

ends. This rule means that the grand jury may not be used 

solely to obtain additional evidence against a defendant who 

has already been indicted. After indictment, however, the 

grand jury may issue subpoenas if the investigation is to seek 

a superseding (modified) indictment, the indictment of 

additional defendants, or indictment of additional crimes by 

an already-indicted defendant. In addition, the grand jury may 

not be used solely to assist the AUSA in pre-trial discovery or 

trial preparation.

16.14 Grand Jury Subpoenas 

16.14.1 Power and Flexibility of Grand Jury Subpoenas

Grand juries have the power to subpoena testimony and other 

evidence. What a grand jury may subpoena is often beyond an 

officer’s reach. Consider the following situations about how 

officers often collect evidence and in parentheses, the 

limitations faced.

• The officer may seek consent to search. (But the person 

may refuse consent.)

• A witness may agree to an interview. (But an officer 

cannot force a person to submit to an interview.)

• An officer may request a search warrant. (But there may 

not be probable cause for the warrant.)

• An officer may get a court order to obtain information. 

(But the request may take too long, or the judge may 

refuse to issue it.)

In the above examples, the officer should consider whether a 

grand jury subpoena would meet the needs of the government. 
340

In addition, subpoenas may be used to obtain the following 

(this list is by no means complete):

• corporate records that would reveal evidence of a crime;

• a copy of an apartment lease or car rental contract;

• fingerprints, handwriting or voice exemplars, or hair 

samples;

• phone records to see what calls were made;

• bank or credit card company records;

• shipping records from interstate carriers.

16.14.2 Types of Grand Jury Subpoenas

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.

16.14.3 Service of Subpoenas

While the F.R.Cr.P.s specifically provide for service by U.S. 

Marshals, officers may, and often will, serve subpoenas in 

their own cases. Unlike a summons that may be served upon a 

“person of suitable age and discretion” followed by mailing the 

summons, a subpoena must be personally served upon the 

person named in the subpoena. Substitute service is not 

permitted. The failure to comply with a properly served 

subpoena is punishable as contempt of court.

16.14.4 Quashing or Modifying a Subpoena
341

A person who has been subpoenaed to provide information and 

who is subject to a privilege (such as the 5th Amendment or 

the spousal privilege) or who otherwise objects to the subpoena 

may go to court to “quash” (cancel) the subpoena. The court 

may either grant or deny such a motion to quash, or may 

modify the subpoena to limit what the person must provide.

16.14.5 Legal Requirements for a Subpoena

The item or testimony sought must be relevant to a grand jury 

investigation. “Relevance” is a much lower standard than 

probable cause. In the case of a subpoena Duces Tecum, the 

items sought must be particularly described so the person 

subpoenaed can comply. The production of the item also may 

not be “unreasonably burdensome.”

16.14.6 Limitations of Grand Jury Subpoenas

• A grand jury may only investigate crimes in the district 

where they sit.

• A subpoena may not be used to investigate civil (noncriminal) matters.

• Fifth Amendment (self-incrimination) and other 

privileges apply. A subpoena may not compel a person to 

provide self- incriminating testimony. Persons who 

legitimately claim a privilege against self-incrimination 

may be compelled to testify if given a grant of immunity. 

Immunized testimony may not be used against the 

immunized witness though it could be used against 

another. In addition, a subpoena may not compel 

disclosure of information that is subject to other 

recognized privileges (attorney-client, psychotherapistpatient, husband-wife, and clergy-communicant). DOJ 

requires special permission before issuing subpoenas to 

the media and to non-target attorneys, doctors, and 
342

members of the clergy. The AUSA will have the details 

explaining how this can be accomplished.

• A subpoena may not be used to compel a person to 

submit to an interview. For example, believing that a 

witness might not give an interview, an officer serves a 

subpoena on the witness implying that if the witness 

submits to an interview, the subpoena will be 

withdrawn. This is an improper use of grand jury 

powers. On the other hand, if the officer serves a 

subpoena on a person, and if the witness then indicates 

willingness to be interviewed, the officer may lawfully 

conduct the interview. The AUSA may thereafter release 

the witness from the necessity of appearing before the 

grand jury to testify.

• Subpoenas may not be issued to investigate the 

offense(s) that have already been indicted.

• While the grand jury may be used to investigate crimes 

such as harboring or escape, DOJ policy prohibits its 

prosecutors from using the grand jury’s subpoena power 

solely to aid in locating and arresting fugitives.

16.14.7 Forthwith Subpoenas

In some cases, officers may have reason to believe that a 

person served with a subpoena for documents or other 

evidence may destroy the evidence or falsely deny having the 

subpoenaed item(s). With the approval of a U.S. Attorney, the 

officer may obtain a “forthwith” subpoena when there is a risk 

of flight or destruction of evidence. A forthwith subpoena must 

be approved by a Judge and, if approved, requires the 

recipient’s immediate compliance with the production 

demands within the subpoena. Even using a forthwith 

subpoena, however, there still may be some opportunity to 

destroy evidence.
343

When a subpoena would allow a person to destroy or alter 

evidence, or falsely claim they do not have the item, the officer 

should consider obtaining a search warrant. A search warrant 

has several advantages over a subpoena: the government 

selects when the search warrant is executed; officers can find 

the item themselves, thereby denying the suspect an 

opportunity to destroy the evidence; evidence found in plain 

view during the search can be lawfully seized; and evidence 

obtained by a search warrant is not subject to grand jury 

secrecy rules.

Subpoenas, on the other hand, are easier to obtain because 

they do not require probable cause and can usually be obtained 

by contacting the AUSA’s office.

16.14.8 The Mechanics of Obtaining a Subpoena

The exact procedure varies in each district. Ordinarily, after 

the grand jury has been empaneled, subpoenas are issued and 

signed in blank by the clerk of court. The AUSA or a grand jury 

subpoena coordinator in the AUSA’s office keeps the 

subpoenas. The AUSA decides if a subpoena will be issued. 

When officers need a subpoena, they should contact the 

AUSA’s office and request one.

16.14.9 Inspector General (IG) Subpoenas

In addition to grand jury subpoenas, IG subpoenas might also 

be available. Most IG subpoenas are authorized by the 

Inspector General’s Act, 5 USC App. §6(a)(4). The following 

text box contrasts some aspects between IG and grand jury 

subpoenas.
344

Grand Jury Subpoena Inspector General Subpoena

Secrecy rules apply 

(F.R.Cr.P. 6(e))

No GJ secrecy rules

Criminal matters only Criminal or civil matters

Ad testificandum or duces 

tecum

Duces tecum only

Can obtain delay in notice in 

certain banking records

Person will be notified when 

certain bank records 

subpoenaed

Can be relatively easy to 

obtain

Sometimes requires 

executive level approval

16.15 Secrecy Requirement 

F.R.Cr.P. 6(e)(2) requires that grand jury proceedings, and 

“matters occurring before the grand jury,” may not be publicly 

disclosed and, subject to very specific exceptions noted below, 

must remain secret. The purpose of this secrecy rule is to 

encourage witnesses to come forward and testify freely and 

honestly, to minimize the risk that prospective defendants will 

flee or thwart investigations, and to protect accused persons 

who are ultimately exonerated from unfavorable publicity.

The following items are protected by grand jury secrecy rules 

and officers cannot disclose the item unless authorized to do 

so. Collectively, these items are known as “matters occurring 

before the grand jury,” or simply, “grand jury matters:”

• The names of witnesses (including that the officer was a 

witness);

• The testimony of a witness (including the officer’s own 

testimony);

• Documents and other items that were subpoenaed by the 

grand jury; and
345

• Other grand jury matters including information 

provided by the AUSA, questions by grand jurors, and 

what occurred in front of the grand jury.

16.15.1 Exceptions to F.R.Cr.P. 6(e)

Exceptions to F.R.Cr.P. 6(e)’s secrecy requirement are as 

follows:

a. The Non-Government Witnesses Exception

A private citizen (non-government employee) who testifies 

before a grand jury may lawfully disclose that they testified 

and the subject matter of their own testimony.

b. District Court or AUSA Disclosure

A district court judge can order disclosure of grand jury 

matters. Typically, with notice to a district court judge, the 

AUSA controls disclosure of grand jury matters. Requests to a 

district court judge are processed by the AUSA and do not 

involve officers. The remainder of this section will discuss only 

release of grand jury matters by the AUSA.

c. Access to Grand Jury Matters

The existence of grand jury matters is of little value unless the 

officer can have access and use them. Grand jury matters, 

however, may not be released to just anyone and may be 

released only for limited purposes on a “need to know” basis. 

The AUSA can give the following groups access to grand jury 

matters for the purposes indicated:

• Federal and state officers for the purpose of enforcing 

federal criminal law. Grand jury matters cannot be 

released for civil law purposes.
346

• 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 F.R.Cr.P. 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 F.R.Cr.P. 26.2 are discussed thoroughly in a later 

section.) 

• Foreign intelligence and other persons and entities. 

There are other, limited situations when grand jury 

matters may be revealed that are beyond the scope of 

this course. For example, foreign intelligence 

information may be given to a wide variety of entities. 

F.R.Cr.P. 6(e)(3)(D) permits the disclosure of grand jury 

information involving intelligence information to any 

federal law enforcement, intelligence, protective, 

immigration, national defense, or national security 

official in order to assist the official receiving that 

information in the performance of official duties. This 

section requires notice to the court of the agencies to 

which information was disseminated and adds a 

definition of “foreign intelligence information” to 

F.R.Cr.P. 6(e). 

d. The 6(e) list 

Officers need, and may use, grand jury matters to conduct 

criminal investigations. The AUSA who is assigned to the 

investigation may authorize officers to have access to grand 

jury materials for that purpose and on a case-by-case basis. If 

the officer needs access to grand jury matters, request 
347

approval from the AUSA. Officers from other agencies, or those 

in the chain of command who need grand jury information, 

must also obtain approval from the AUSA.

The AUSA is required to maintain a list of persons the AUSA 

has authorized to see grand jury matters. This is commonly 

known as “the 6(e) list.” Officers may disclose grand jury 

matters only to those on the 6(e) list.

Consider the following examples of when grand jury matters 

may or may not be disclosed:

• Officer is on a task force with officer B. The officer is on 

the 6(e) list; officer B is not. Officer B may not have 

access to grand jury matters until officer B is placed on 

the 6(e) list by the AUSA.

• Officer testified as a grand jury witness targeting a local 

politician. While out with friends at dinner, the friends 

(who are not on the 6(e) list) start discussing rumors that 

the politician is about to be indicted. The officer may 

neither disclose that he was a grand jury witness nor 

reveal testimony or other grand jury matters.

Information obtained independently of the grand jury is not 

subject to the restrictions of F.R.Cr.P. 6(e), even if the same 

information has previously been obtained using the grand jury 

or its subpoena power. For example, a copy of Document X was 

obtained through a grand jury subpoena. The officer seized 

another copy of Document X during the execution of a search 

warrant. Copy 2, which was obtained by a source independent 

of the grand jury, may be given to anyone who needs to have 

it. Nevertheless, F.R.Cr.P. 6(e) still prohibits the officer’s 

disclosure to anyone not on the 6(e) list that Copy 1 was 

obtained by the grand jury.
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“Mixed information” poses different problems. Consider an 

investigation in which an officer prepares a financial analysis 

that shows that the target of an investigation has been 

spending more money than all known sources of income 

combined. The analysis is based both upon documents 

subpoenaed by the grand jury as well as on documents and 

information from non grand jury sources. If the analysis does 

not identify or refer to the source of information as grand jury 

matter, the officer may reveal the analysis to those not on the 

6(e) list. However, if the analysis does reveal that grand jury 

matters are involved, the officer may only disclose it to those 

on the 6(e) list. 

In general, government attorneys who are prosecuting a civil 

suit on behalf of the United States, or who are defending a civil 

suit against the United States, may not be given access to 

grand jury matters to help prepare the government’s case. 

That is because grand jury matters ordinarily may not be used 

for civil proceedings. In rare instances based upon specific 

needs and legal issues not necessary to cover here, a District 

Court judge (not the AUSA or even a Magistrate Judge) may 

enter an order allowing such disclosure. 

16.16 Defense Access to Government Evidence 

In preparing for trial, the defense is entitled by law to know 

what evidence the government has so that it may attack the 

government’s case and mount a defense. Commonly referenced 

as “discovery material,” this information must be disclosed to 

the defense under one or more of the following sources of 

authority: (1) the Brady doctrine; (2) the Giglio case; (3) the 

Jencks Act/F.R.Cr.P. 26.2; and (4) F.R.Cr.P. 16. Additionally, 

most District Courts have local discovery rules that may 

require additional categories of information to be disclosed by 

the government and/or defense and that impose upon the 

parties certain time requirements for discovery. 
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16.16.1 The Brady Doctrine 

In the Supreme Court case of Brady v. Maryland, 373 U.S. 83 

(1963), the defendant was convicted and sentenced to death for 

first-degree murder committed in the course of a robbery. The 

government knew, but Brady did not, that Brady’s accomplice 

had confessed to the actual murder. The United States 

Supreme Court later reversed Brady’s conviction because this 

information was not disclosed to the defense and thus the 

“Brady Doctrine” was born. 

The Brady doctrine requires that the government tell the 

defense of any exculpatory (favorable) evidence known to the 

government. 

 

Exculpatory evidence is that which would cast doubt on the 

defendant’s guilt or might lessen the defendant’s punishment. 

The defense does not have to request the information - if the 

government knows of it, it must be disclosed. Brady materials 

must be provided a reasonable time in advance of trial so the 

defense may have a reasonable opportunity to decide how to 

use the information. 

Examples of Brady material include: 

• Evidence that another may have committed the charged 

offense 

• Information supporting an alibi 

• Information supporting an affirmative defense (such as 

entrapment or self defense) 

• Exculpatory (favorable) material 

16.16.2 Disclosure under Giglio 
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The Supreme Court case of Giglio v. United States, 405 U.S. 

150 (1972), requires the government to disclose information 

that tends to impeach any government trial witness, including 

law enforcement officers. “Impeachment” is information that 

contradicts a witness or which may tend to make the witness 

seem less believable. Officers must tell the AUSA about 

potential Giglio information so AUSAs can decide what must 

be disclosed. 

Information that may show the following situations must be 

disclosed to the AUSA: 

• Affects the credibility or truthfulness of the witness to 

include having lied in an investigation, character 

evidence of untruthfulness, or any bias. 

• Payment of money for information or testimony. 

• Plea agreements or immunity. 

• Past or pending criminal charges. 

• Specific instances of inconsistent statements. 

• Findings of a lack of candor during an administrative 

inquiry. 

• Any credible allegation of misconduct that reflects upon 

truthfulness or bias that is the subject of a pending 

investigation. Allegations made by a magistrate judge, 

district court judge, or prosecutor, and allegations that 

received considerable publicity must be disclosed to the 

AUSA even if determined to be unsubstantiated. 

Information disclosed to the AUSA does not automatically go 

to the defense. The defense does not have an automatic and 

unrestricted right to see law enforcement personnel files. The 
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government may be required to review files for Giglio 

information. If the AUSA does not believe that he or she alone 

can determine whether certain information must be disclosed 

to the defense, then the AUSA should produce that 

information for an in camera inspection (by the judge only). 

The judge will then decide if the defense will get the 

information. 

16.16.3 The Jencks Act and F.R.Cr.P. 26.2

The Jencks Act, created in response to Jencks v. United States, 

353 U.S. 657 (1957), 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- examination of the witness. 18 U.S.C. § 3500. The 

Jencks Act requires the AUSA to deliver prior statements only 

after a witness testifies and before cross-examination begins. 

To avoid unnecessary delays during the trial, however, the 

AUSA usually will give Jencks Act statements to the defense 

in advance of trial. 

Jencks Act “statements” include: 

• A written statement made and signed, or otherwise 

adopted, by the witness, such as an affidavit or a letter. 

If the officer shows a witness notes taken during an 

interview, for example, to have the witness confirm the 

accuracy of the notes, the notes may thereby become that 

witness’s “adopted statement” for Jencks Act purposes. 

• A stenographic, mechanical, electrical, or other recorded 

statement. 

• A substantially verbatim transcript of an oral statement 

made at the time the witness was speaking. 

• The transcript of the witness’s grand jury testimony. 
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• The officer’s own notes may qualify as a Jencks Act 

statement if the officer testifies or, as stated above, when 

a witness is shown the notes and vouches for their 

accuracy (an adopted statement). The officer must 

therefore safeguard notes, including original rough 

notes of interviews and other activities, even if they are 

later formalized or included in other reports. Determine 

agency and local AUSA policy concerning safeguarding 

notes. 

F.R.Cr.P. 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 F.R.Cr.P. 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 F.R.Cr.P. 26.2. 

• Example 1: A witness testifies at grand jury. Grand jury 

testimony is secret and will not be given to the defense. 

If the grand jury witness testifies at a hearing or trial, 

however, the grand jury testimony will be given to the 

defense under the Jencks Act or F.R.Cr.P. 26.2. 

• Example 2:The signed or adopted statement of a 

government witness that he saw the defendant commit 

a crime (non- exculpatory statement) is not otherwise 

discoverable. If that witness testifies at a trial or 

hearing, however, the statement must be given to the 

defense under the Jencks Act or F.R.Cr.P. 26.2. 

16.16.4 Discovery under F.R.Cr.P. 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, 
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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 F.R.Cr.P. 16 

materials are almost always provided to the defense. F.R.Cr.P. 

16 discovery covers that which is in the possession and control 

of the government, that which the government should know, 

and in some instances, what the government could know.

Discovery requests are made by the defense to the AUSA. 

AUSAs, not the law enforcement officer, respond to discovery 

requests. The officer’s role in discovery is to keep the AUSA 

informed about all the information in the case so the AUSA is 

aware of the materials in the government’s possession that 

must be disclosed to the defense.

Evidence discoverable under F.R.Cr.P. 16 includes most 

statements made by the defendant to include:

• Any recorded or written statement made by the 

defendant that is relevant to the case to include any 

grand jury testimony. This includes not only recorded or 

written statements to law enforcement, but also to 

private citizens. For example, e-mails or letters between 

the defendant and friends, in the possession of the 

government, are discoverable.

• 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 
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the government intends to offer at trial (trial exhibits). 

• Items obtained from or that belonged to the defendant 

such as evidence that was subpoenaed from another or 

discovered during a search of the defendant or the 

defendant’s property. 

• Reports of examinations and tests such as handwriting, 

ballistic, or fingerprint comparisons. 

Items that are not discoverable under F.R.Cr.P. 16 include: 

• Reports of witness interviews or recorded (written or 

electronic) statements. (If a witness testifies at a hearing 

or trial, however, the Jencks Act requires that the 

government then disclose any prior recorded (written or 

electronic) statements by that witness to the extent that 

such recorded information is relevant to the substance of 

that witness’ testimony.) 

• Internal government documents made by you or the 

AUSA. This would include reports, memoranda, 

memoranda of interview (MOIs), and reports of 

investigation (ROIs). 

If the defense makes a discovery request, the government is 

also entitled to certain information (“reciprocal discovery”) 

from the defense. This will be handled by the AUSA. 

Brady Exculpatory evidence

Giglio Impeachment of trial witnesses

Jencks Act and 

F.R.Cr.P. 26.2 

Prior statements of witnesses

F.R.Cr.P. 16 Most of defendant’s statements, 

criminal history, scientific tests, 

property
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16.16.5 eDiscovery in Federal Criminal Investigations and 

Prosecution

In our digital world with its proliferation of electronic devices, 

electronically stored information (ESI), electronic 

communications (eCommunications), and social media, much 

of the discovery material the government must disclose will be 

in electronic format. This reality requires procedures be 

implemented to capture, preserve, and manage ESI and 

eCommunications to meet the government’s obligations. 

Speed, efficiency, and ease of sharing are real benefits of using 

this technology, but there are risks as well. Electronic 

communications are often hastily prepared, quickly sent, and 

may not be as complete as formal documents. The abbreviated 

nature of these communications and the lack of context create 

a significant danger of misinterpretation. When conducting 

criminal investigations and prosecutions, agents should strive 

to take advantage of the technology while minimizing the 

risks.

• Electronically Stored Information (ESI): For 

investigations, creating, obtaining, seizing, and 

maintaining ESI is primarily a function of case 

organization and management. There are numerous 

software systems that perform well, and agencies 

typically pick one that fits their kind of cases best. For 

prosecutions, there are a number of case presentation 

software systems that perform well, and prosecution 

offices typically pick one that fits best.

• Electronic Communications: The creation, capture, 

storage, and disclosure of eCommunications during the 

course of an investigation and prosecution of a federal 

criminal case is another matter. It can be a huge, costly 

undertaking to find and assemble all of the case related 

eCommunications. But those deemed discoverable must 

be turned over to the defense in full compliance with the 
356

government’s obligations. The guiding principle is this: 

Any potentially discoverable information and 

communication should be preserved and delivered to the 

prosecutor.

The Department of Justice, Deputy Attorney General 

Memorandum on Guidance on the Use, Preservation, and 

Disclosure of Electronic Communications in Federal Criminal 

Cases, March 30, 2011, establishes best practices for how 

eCommunications should and should not be used during the 

investigation and prosecution of a federal criminal case and 

how to capture and store these communications to ensure that 

the government meets its discovery obligations. These best 

practices recognize the scope of the issue, define terms, and set 

out the responsibilities of all those involved in the 

investigation and prosecution of federal criminal cases. (A copy 

of this memorandum is included in the Legal Training 

Reference Book.)

16.16.6 eCommunications: Defined

Many day to day communications make up eCommunications. 

They include e-mail, text messages, instant messages, and 

short message services such as tweets, pin-to-pin, social 

networking sites, bulletin boards, and blogs. They can be 

broken down into three categories – Substantive, Logistical, 

and Privileged.

• Substantive Communications contain factual 

information about the case, including: information about 

investigative activity; information from interviews or 

interactions with victims, witnesses, potential 

witnesses, informants, cooperators, and experts; 

discussions about the merits of evidence; and 

information regarding the credibility or bias of 

witnesses.
357

• Logistical communications include those that contain: 

travel information; dates, times, and locations of 

hearings or meetings; and those that transmit reports. 

Generally, purely logistical communications are not 

discoverable.

• Privileged Communications include those that contain: 

attorney-client privileged communications; attorney 

work product communications; deliberative process 

communications; and protected communications, which 

are those covered by F.R.Cr.P. 16(a)(2). Generally, so 

long as any discoverable facts in them are disclosed in 

other materials, privileged and protected 

communications are not discoverable.

When drafting and using eCommunications during and as part 

of an investigation and prosecution, first consider whether ecommunication is appropriate to the circumstances or whether 

an alternative form of communication, such as a formal report 

or telephone call, is a better choice. Don’t send substantive, 

case-related eCommunications unless absolutely necessary 

and only to those with a need to know. If you do use 

eCommunications, be professional. When sending substantive 

eCommunications, write them like a formal report with 

accurate and complete facts. Avoid witticism, careless 

commentary, opinion, and over familiarity. Limit 

eCommunications to a single case and make non-prosecution 

team members aware that eCommunications are a record and 

that they may be disclosed to the defense.

16.16.7 Preserving eCommunications

Each person who is the creator, sender, forwarder, or the 

primary addressee of an e-Communication needs to preserve 

it. If none of the above apply, then each person who is a 

secondary recipient (in the “cc” or “bcc” line) needs to preserve 

it. Preserve all potentially discoverable eCommunications, 
358

including attachments and threads of related 

eCommunications. “All Potentially Discoverable 

eCommunications” includes all substantive eCommunications 

created or received during the investigation and prosecution. 

It includes all eCommunications sent to or received from nonlaw enforcement potential witnesses, regardless of content. It 

also includes eCommunications that contain both potentially 

privileged and unprivileged substantive information. If not 

sure, err on the side of preservation. Purely logistical 

eCommunications need not be preserved.

Preserve as soon as possible, but no later than ten (10) days 

after the eCommunication is sent or received. Be sure to 

preserve before agency or department systems automatically 

delete messages because of storage limitations or retention 

policies. Use secure permanent or semi-permanent storage 

associated with the particular investigation and prosecution. 

For e-mail, create a specific folder to which messages can be 

moved. If this is not possible, messages can be printed and put 

it in the criminal case file. Preserve eCommunications in their 

native e-format whenever possible.

As with all discovery materials, each person involved in the 

case must provide all potentially discoverable 

eCommunications for the prosecutor to review to determine 

what should be produced in discovery. Let the prosecutor know 

if there are eCommunications that deserve especially careful 

scrutiny because disclosure could affect the safety of any 

person, reveal sensitive investigative techniques, compromise 

the integrity of another investigation, or reveal national 

security information.

The goal of these best practices is to reduce the volume of 

potentially discoverable eCommunications and establish a 

system to manage them. That reduces the time and costs of 

managing discovery and ensures full compliance with the 

government’s ethical and legal discovery obligations.
359

16.16.8 Continuing Duty to Disclose

Complying with discovery and disclosure requirements is a 

continuing obligation. If the defense asks for an item that does 

not exist at the time of the request, but later comes into 

existence, the government must disclose it once it learns that 

the evidence exists. For example, if a ballistics test has not 

been performed at the time of a discovery request, but later the 

test is performed, the government must disclose the results of 

the test.

16.16.9 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, agent/officer 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.

16.17 Venue and Transfer 

It is important for you to determine the venue for any offense 

under investigation. Venue controls what judge can perform 

certain functions, where you must obtain court documents, 

and where the defendant can be tried.

Jurisdiction is the power of a court to try a case. For example, 

a federal district court judge has the authority to try any 

federal criminal case. Venue means place. The U.S. 

Constitution provides that a defendant has the right to have 

his case tried in the state and district where the crime 

occurred.
360

Venue affects how an officer performs his or her duties. Each 

of the actions below must be performed in the district where 

the crime occurred (venue):

• Return of a grand jury indictment.

• Presenting a criminal complaint or filing an information.

• Obtaining an arrest warrant or summons.

• In most cases, a search warrant must be obtained in the 

district where the evidence is located.

• Trial of the defendant unless the judge permits 

otherwise.

In a typical case, venue is where the unlawful act occurred. For 

offenses begun in one district and completed in another, venue 

is in any district where the offense was begun, continued, or 

completed. 18 U.S.C. § 3237. In conspiracy cases, venue is in 

the district in which the agreement, any overt act in 

furtherance of the agreement, or termination of the conspiracy 

occurred. Special statutes control venue for those federal 

offenses that occur outside of the jurisdiction of the U.S. or 

upon the high seas.

The defendant will be tried in the district where the crime 

occurred unless one of the below exceptions apply.

• Transfer for Plea and Sentence (F.R.Cr.P. 20). If a 

defendant is arrested in a district other than the one 

where the crime occurred and the prosecution is 

pending, the prosecution may be transferred to the 

district of arrest if the defendant states in writing a wish 

to plead guilty in the district of arrest and to waive trial 

in the district where the prosecution is pending, and the 
361

United States Attorneys and the judges in both districts 

agree. If the defendant thereafter changes his plea to not 

guilty, then the prosecution is transferred back to the 

district where the crime occurred and from which the 

prosecution was transferred.

• Transfer for Trial (F.R.Cr.P. 21) (“change of venue”). The 

defense may file a motion requesting a transfer of the 

prosecution to another district for trial or other 

disposition if the court finds

• that the prejudice against the defendant is so great in 

the district of venue (where the crime occurred) that the 

defendant cannot obtain a fair and impartial trial, or (b) 

that the prosecution, or one or more counts, against the 

defendant should be transferred to another district for 

the convenience of the parties and the witnesses and in 

the interest of justice.

• To state and local officers, “extradition” involves moving 

a defendant between states within the United States to 

stand trial. In the federal system, extradition is moving 

a defendant into the United States (or out of the United 

States) for trial. In other words, federal extradition is not 

the movement of a defendant between districts and 

states, but between the United States and another 

nation. The process is a complicated one involving the 

Departments of State and Justice.

16.18 The 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 

themselves 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 
362

the defendant is indicted or an information is filed within the 

statute of limitations, then the prosecution may proceed. If 

not, then prosecution is barred.

The general statute of limitations requires the government to 

indict or file an information within five years from the date of 

the offense. 18 U.S.C. § 3282. Some crimes have their own 

statute of limitations. For example, the statute for Title 26 tax 

crimes is generally six (6) years; arson is ten (10) years. There 

is no statute of limitations for a capital offense.

It is helpful to view the statute as a clock. The clock starts, 

that is, the statute starts to run, the day after the offense is 

completed. The clock runs until the defendant is indicted or an 

information is filed. If at the time of indictment or information 

the clock is not yet at the five-year point, prosecution may 

proceed. If the clock has reached or passed the five-year point, 

prosecution is barred. A statute of limitations runs even 

though the government does not know the defendant’s 

identity.

An example of the computation for the general statute of 

limitations:

• 8/31/2010: Crime committed.

• 9/1/2010: First day of running of the statute of 

limitations. 

• 8/31/2015: Last day to secure indictment or information.

• 9/1/2015: Prosecution barred unless indictment or 

information was 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 
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statute.” A fugitive is a person who commits an offense and 

then intentionally flees from the jurisdiction of the court where 

the crime was committed, or who departs from his usual place 

of abode and intentionally conceals himself for the purpose of 

avoiding prosecution. Fleeing from justice means the person 

has left to avoid trial and punishment.

An example of the computation for the general statute of 

limitations in a fugitive case:

• 8/31/2010: Crime committed.

• 9/1/2010: First day of running of the statute of 

limitations. 

• 10/1/2010 to 9/30/2011: Defendant is a fugitive from 

justice. The statute of limitations is tolled.

• 8/31/2016: Last day to secure indictment or information.

• 9/1/2016: Prosecution barred unless indictment or 

information was obtained.

Some offenses are called “continuing offenses” which means 

that though the crime occurred on a certain day, the statute of 

limitations does not begin to run until a later date. For 

example, in a conspiracy case, the statute begins to run on the 

date of the last overt act even though the agreement may have 

occurred earlier. Certain frauds are also continuing offenses. 

The statute of limitations for mail or wire fraud, for example, 

begins to run on the date of the last mailing or wire 

transmission in furtherance of the scheme to defraud.

16.19 The Speedy Trial Act 

The Speedy Trial Act (18 U.S.C. §§ 3161-3174) establishes time 

limits for bringing a defendant to trial after arrest or service 
364

of a summons. The statute ensures the timely progression of 

the case and serves to implement the Sixth Amendment 

“...right to a speedy and public trial.”

No more than one hundred (100) days may elapse between 

date of arrest or service of a summons and the first day of the 

trial. The 100- day rule has two separate components:

• An indictment or information must be filed within 30 

days of the date of arrest or service of a summons.

• The trial must begin within 70 days of the public filing 

of the indictment or information, or from the date the 

defendant appears before the court in which the charge 

is pending, whichever is later.

Many events may delay the start of a trial yet be excluded in 

calculating whether the Speedy Trial Act has been violated. 

These exclusions usually involve procedural matters that 

concern only the AUSA and are beyond your control. By way 

of example, the time to litigate pretrial motions or to perform 

necessary mental evaluations of a defendant would be 

excluded from Speedy Trial Act time.

A law enforcement officer must appreciate that when a suspect 

is arrested, the Speedy Trial Act is triggered. That may, in 

turn, cause the AUSA to commence the prosecution of a case 

before the AUSA is ready to do so. Therefore, it is critical that 

the officer coordinate with the AUSA on the timing of 

discretionary arrests. If an immediate arrest is necessary to 

prevent harm, preserve evidence, or prevent flight, the office 

should notify the AUSA immediately.

16.20 Presentencing Investigations and Reports 

In the federal system for non-capital cases, defendants are 

sentenced by the trial judge. The judge will conduct a 
365

sentencing hearing. In a capital case (where the death penalty 

is authorized by statute), the judge may impose death if a jury 

recommends it. The defendant may waive the participation of 

a jury. 18 U.S.C. § 3593.

Each district has a U.S. Probation and Pretrial Services Office. 

Before the sentencing of a defendant, a U.S. Probation Officer 

will conduct a Pre-Sentence Investigation (PSI) that consists 

of interviewing witnesses and reviewing documents. 

Thereafter, the U.S. Probation Officer will prepare a 

presentencing report (PSR). The sentencing judge will use that 

report in determining an appropriate sentence. The report 

may contain a specific sentencing recommendation.

At a minimum, the PSR will include the defendant’s history 

and characteristics, including any prior criminal record, 

financial condition, and any circumstances affecting the 

defendant’s behavior that may be helpful in imposing 

sentence. (F.R.Cr.P. 32.)

The law enforcement officer may be asked to provide certain 

information to the U.S. Probation Officer in the form of a 

witness interview or otherwise. The officer should comply with 

these requests. While most of the information for a PSR is 

available through sources other than the officer, some may 

only be available using the investigative file prepared by the 

government. If the officer has information that would assist 

the probation officer, he or she should make it available, and 

assist Probation Services to ensure that the report contains 

complete and accurate information.
366

 
367

Chapter 17 - 

 

Fifth and Sixth Amendments 

17.1 Introduction ............................................................. 368

17.2 Motions to Suppress and Suppression Hearings ..... 368

17.3 The Fifth Amendment Privilege Against SelfIncrimination ....................................................................... 369

17.3.1 The Three Privilege Triggers: When Someone Can 

Validly Claim the Privilege ...................................................370

17.3.2 When Can Someone Assert the Privilege? ............372

17.3.3 Voluntariness: The Admissibility Key...................373

17.3.4 Government Employer Internal Investigations....377

17.3.5 Special Circumstances ...........................................380

17.4 Miranda and Custodial Interrogation ..................... 385

17.4.1 When are Miranda Warnings Required? ..............385

17.4.2 Miranda Warning Best Practices ..........................395

17.4.3 The Three Components of a Valid Miranda 

Waiver.......................................................................396

17.4.4 What to Do When a Suspect Invokes a Miranda 

Right.........................................................................398

17.4.5 Effects of Miranda Violations ................................401

17.5 The Sixth Amendment Right to Counsel ................. 403

17.5.1 Trigger: Formal Charging ......................................403

17.5.2 Nature and Scope of the Sixth Amendment Right to 

Counsel .....................................................................403

17.5.3 Waiving the Sixth Amendment Right to Counsel 406

17.5.4 Avoiding a Bad Career Move .................................406

17.6 Prosecutorial Ethics and the McDade Amendment 407

17.7 Fifth Amendment Due Process and Identification 

Procedures ........................................................................... 408

17.7.1 Types of Identification Procedures ........................409
368

17.1 Introduction 

Suspect’s statements and eyewitness identifications are 

valuable evidence at trial. This chapter outlines the Fifth 

Amendment, Sixth Amendment, and case law principles that 

law enforcement officers need to know so that they can collect 

evidence to ensure that it is admissible at trial.

17.2 Motions to Suppress and Suppression Hearings 

A defense lawyer knows that when a client plans to go to trial, 

doing a competent job of representing that client ordinarily 

demands attacking the admissibility of witness identifications 

and statements obtained from the defendant. A motion to 

suppress is the tool that defense lawyers use to accomplish this 

objective. 

When a defendant moves to suppress a statement or 

identification, the court ordinarily conducts a pretrial 

evidentiary hearing. During that hearing, which takes place 

without the jury present, law enforcement officers and other 

witnesses testify about the circumstances under which 

statements or witness identifications were obtained. 

Consequently, the government’s ability to defeat a motion to 

suppress requires law enforcement officers to make wellinformed plans before questioning subjects or seeking 

identifications, follow key rules during such procedures, and 

carefully preserve evidence of what they did.

Based on the testimony and other evidence at the pretrial 

hearing on a defendant’s motion to suppress, the court will 

decide whether to grant the defendant’s motion. When a court 

grants that motion, it invokes the exclusionary rule and 

forbids the prosecution from exposing the jury to the 

suppressed evidence. Discussion of the exclusionary rule 

appears in the Fourth Amendment chapter. Because a 
369

successful motion to suppress can defeat a successful 

prosecution, knowing and following the applicable principles 

and preserving the right evidence can be as important as the 

trial itself.

17.3 The Fifth Amendment Privilege Against SelfIncrimination 

Ensuring that a suspect’s statements are admissible at trial 

requires understanding the Fifth Amendment privilege 

against self- incrimination (“the Privilege”), which is found in 

the Bill of Rights. The applicable provision provides, “No 

person...shall be compelled in any criminal case to be a witness 

against himself.” Only voluntary statements are admissible 

under the Fifth Amendment.

As used in this section, the term “Privilege” refers solely to the 

Fifth Amendment privilege against self-incrimination. Do not 

confuse the Fifth Amendment privilege with common law 

evidentiary privileges that can protect communications 

between spouses, lawyers and clients, and the like. A 

discussion of evidentiary privileges appears in the Courtroom 

Evidence chapter.

The Privilege protects all human beings from government 

action compelling them to communicate testimonial evidence 

that could be used in a criminal prosecution. Because each 

human being’s Privilege is personal, one person cannot assert 

his or her own Privilege to protect another person. Moreover, 

even though courts treat artificial entities such as labor 

unions, corporations, limited liability corporations, and other 

business entities as “persons” in other areas of the law, the 

Privilege only protects flesh-and-blood human beings.
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17.3.1 The Three Privilege Triggers: When Someone Can 

Validly Claim the Privilege 

A person may validly invoke the Privilege and refuse to 

communicate only when all three of the following conditions 

exist: 

(a) The communication is compelled by the government, (b) 

it is testimonial, and (c) it is incriminating.

a. What is “government compulsion?”

Claiming the Privilege’s protections requires evidence of 

government compulsion, which can take place in both formal 

and informal situations. For example, subpoenas and court 

orders are forms of formal government compulsion because 

they require a person to speak or act as directed or suffer legal 

consequences.

In contrast, governments can also apply informal pressures 

that compel a person to speak or act. For example, a suspect 

answering police questions against her will, a government 

employee who responds to the boss’s questions under the 

threat of termination, and a parent who decides to answer a 

government child protective service worker’s questions rather 

than losing custody of a child are all subjected to informal 

government compulsion.

b. What is “testimonial evidence?”

To claim the Privilege’s protection, the communication at issue 

must also be “testimonial.” As is true in many areas of law, the 

term “testimonial” has a special meaning different from the 

way that people use the word in ordinary conversation. Where 

the Privilege is concerned, a communication is “testimonial” 
371

only when it communicates facts or discloses information from 

a person’s own mind.

Testimonial evidence includes more than just spoken and 

written words – it can also include gestures and actions. For 

example, an armed bank robber who points to her backpack 

when police ask where she put the gun communicates 

testimonial evidence because her gesture shows that she 

knows which particular gun the questioner is asking about and 

where it is. Similarly, when the subject of a fraud investigation 

delivers his appointment book to a grand jury in response to a 

subpoena, he communicates that he knows the appointment 

book exists, that he has it, and that the book is authentic.

In contrast, evidence is “non-testimonial,” and hence not 

protected by the Privilege, when it does not communicate the 

contents of a person’s mind. Government compulsion requiring 

the following acts generates only unprotected, non-testimonial 

evidence:

• Subpoenas and court orders requiring a person to 

provide fingerprints, handwriting samples, or voice 

samples for comparison and testing;

• Search warrants and court orders requiring a person to 

give a blood sample for analysis and testing; and

• Directives to perform sobriety tests needed to identify 

physical evidence of intoxication such as slurred speech, 

lack of muscular coordination, and other indicators.

c. What is “incriminating?”

Finally, to claim the Privilege’s protection, a communication 

must also tend to incriminate a person in any criminal 

proceeding. A communication is incriminating when the 

person communicating reasonably fears that it could be used 

to:
372

• Convict him or her of a crime; 

• Furnish a link in the chain of evidence needed in a 

prosecution; 

• Lead to incriminating evidence; or 

• Identify sources of potentially incriminating evidence. 

In contrast, the Privilege affords no protection for a 

communicator who fears: 

• Incriminating someone other than him or herself;

• Exposing him or herself to civil liability, deportation, or 

an adverse administrative or financial consequence; 

• Exposing him or herself or someone else to physical 

danger or unpleasant circumstances; or 

• Prosecution for a crime in another country. 

17.3.2 When Can Someone Assert the Privilege? 

Any human being can assert the Privilege and decline to act or 

answer questions in any type of proceeding – civil, criminal, 

administrative, judicial, congressional, investigatory, or 

adjudicatory. Once a person properly asserts the Privilege, 

absent a court order granting formal use immunity, also 

known as “statutory immunity,” or a Kalkines warning given 

to a government employee as discussed later in this section, no 

government can compel the person to make a statement so 

long as the person reasonably believes that the government 

could use it against him or her in a criminal prosecution or 

that it could lead to other evidence that might be so used. 
373

For example, say that Congress subpoenas a person to testify 

before a congressional committee. If the person reasonably 

believes that his answers might tend to incriminate him, then 

that person is entitled to assert the Privilege and decline to 

answer questions.

17.3.3 Voluntariness: The Admissibility Key

A person’s communications, including statements and 

confessions, are only admissible in a criminal trial if the 

government can prove that the person gave them voluntarily. 

Communications are voluntary when, under the totality of 

circumstances, the person chooses to communicate as an act of 

free will and unconstrained choice.

In contrast, a statement is involuntary, coerced, and 

inadmissible when circumstances present would have 

overcome a reasonable person’s capacity for selfdetermination, critically impaired his or her free will, and 

undermined the ability to make a free, unconstrained choice to 

communicate. When courts deem a communication 

involuntary under the totality of the circumstances, they 

suppress it without regard to whether it is, in fact, true.

a. What factors are relevant to the totality of the 

circumstances?

While any circumstance that could affect a reasonable person’s 

perception of free choice could be relevant, courts most 

commonly consider the following factors:

• Suspect characteristics

o age

o education level

o degree of intelligence

o drug or alcohol impairment
374

o physical condition

o mental condition

o experience with the criminal justice system

o understanding of the English language

• Conditions during communication or interrogation

o location of the questioning

o length of the detention, if any

o length and duration of questioning

o excessive heat or cold

o whether the suspect had access to food, water, 

sleep, or bathroom privileges

• Law enforcement officer conduct

o physical coercion or threats of physical coercion

o exploiting a suspect’s mental problems

o administering drugs to facilitate an interrogation

o threats made against a suspect’s family members, 

including threats to arrest a spouse or place child 

in protective custody

o threats to a suspect’s job or livelihood

o promises of leniency, a reduced sentence, or 

immunity

b. Voluntariness, the reasonable person, and the 

totality of circumstances

Courts decide whether a communication was voluntary by 

weighing the totality of the circumstances, both favorable and 

unfavorable, to decide whether a reasonable person facing 

them would have been coerced to communicate. Rarely will one 

single factor control the outcome.

Moreover, when multiple coercive factors are present, their 

combined effects can produce an inadmissible, involuntary 
375

statement. For example, in Spano v. New York, 360 U.S. 315 

(1959), law enforcement officers questioned a foreign-born, 25 

year-old man with no experience with the criminal justice 

system, a limited education, and a history of emotional 

instability for eight straight hours during the night, and police 

used a ruse to get him to confess. The Supreme Court found 

the collective effects of those conditions rendered his 

confession involuntary because, under the totality of 

circumstances, official pressure, fatigue, and sympathy falsely 

aroused would have caused a reasonable person to confess 

against his or her will. 

Although absolute control over all pertinent circumstances is 

rare in any situation, skilled law enforcement officers look for 

and use opportunities to safely create and maximize factors 

favoring voluntariness. Both practicalities and 

professionalism standards dictate that officers must also 

document and preserve the information necessary to testify 

accurately about the totality of circumstances, both favorable 

and unfavorable. 

c. Specific interrogation techniques 

Modern law enforcement interrogation techniques rely on 

psychological tactics. In general, courts find that the following 

practices are unlikely, standing alone, to result in an 

involuntary communication: 

1. Promises to Bring Suspect’s Cooperation to 

Attention of Authorities 

Law enforcement officers’ promises to report a suspect’s 

cooperation to a prosecutor will not generally result in an 

involuntary statement. 

2. Confronting Suspect with Evidence of Guilt 
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Law enforcement officers can confront a suspect with evidence 

of guilt. For example, courts have permitted showing a suspect 

the blood-covered clothes that officers found or the illegal 

controlled substances concealed in his vehicle. 

3. Truthfully Informing Suspect of Legal 

Predicament 

In general, a law enforcement officer may truthfully describe 

a suspect’s legal predicament, including authorized sentences 

and the possible benefits of cooperation. 

4. Appealing to Suspect’s Emotion 

Law enforcement officers can appeal to a suspect’s emotion, for 

example, by referring to a suspect’s religious beliefs or telling 

a suspect that his lies dishonor his family. 

5. Some Forms of Trickery and Deception 

Although trickery and deception about the nature or scope of 

a person’s constitutional rights or their rights under Miranda 

v. Arizona, 384 U.S. 436 (1966), is unacceptable, courts have 

deemed some statements obtained using trickery and 

deception voluntary. In Frazier v. Cupp, 394 U.S. 731 (1969), 

for example, law enforcement officers questioned a suspect 

about a murder for approximately an hour. Faced with the 

suspect’s continued denials that he was with anyone but his 

cousin, the officer untruthfully told the suspect that the cousin 

confessed. There, the Supreme Court found the full confession 

that followed voluntary despite the misrepresentation. 

Before deciding to use trickery or deception, law enforcement 

officers should recognize the potential costs. Specifically, while 

constitutionally permissible under some circumstances, a 

decision to use deception or trickery invites a criminal defense 
377

lawyer to attack an officer’s truthfulness, credibility, and 

professionalism during cross-examination. 

17.3.4 Government Employer Internal Investigations 

When a government employee or contractor is accused of 

misconduct affecting a government workplace, the employing 

agency may need to conduct a noncustodial interview that 

could result in administrative discipline. Because complex 

issues can arise when such investigations could also generate 

evidence of criminal misconduct, law enforcement officers 

must anticipate specific concerns that may arise in this 

context. Just as with other people, government employees and 

contractors have the Fifth Amendment privilege against selfincrimination. But because government employees and 

contractors owe their livelihoods to the government, 

interviewing them inevitably raises voluntariness concerns. 

Federal courts addressed some of those concerns in Garrity v. 

New Jersey, 385 U.S. 493 (1967), Gardner v. Broderick, 392 

U.S. 273 (1968), Lefkowitz v. Turley, 414 U.S. 70 (1973), and 

Kalkines v. United States, 473 F.2d 1391 (Ct. Claims 1973), 

cases where government employees and contractors’ Privilege 

came into conflict with public employers’ need to investigate 

misconduct allegations. In response to those cases and their 

progeny, the United States Department of Justice developed 

the Garrity and Kalkines warnings, the two types of warnings 

most pertinent to conducting noncustodial interviews of 

government employees and contractors. Knowing the 

difference between those warnings, and most importantly, 

knowing when not to give Kalkines warnings, is critical. 

a. Distinguishing Garrity and Kalkines Warnings 

Investigators give Garrity warnings when they must ensure 

that any statements that a public employee or contractor make 

are voluntary and admissible should prosecution become 
378

necessary. In contrast, Kalkines warnings are reserved for 

two types of investigations – (1) ones that clearly relate only to 

administrative misconduct, and (2) ones in which prosecutors 

have declined to file criminal charges even though criminal 

misconduct is at issue. 

The terms of the Department of Justice’s Garrity and Kalkines 

warnings bear out these distinctions. While the full text of the 

Department of Justice’s recommended Garrity warning 

appears in the Legal Training Reference Book, the parts most 

pertinent to this section read as follows: 

This is a voluntary interview. Accordingly, you do 

not have to answer questions. No disciplinary 

action will be taken against you solely for refusing 

to answer questions. 

Any statement you furnish may be used as 

evidence in any future criminal proceeding or 

agency disciplinary proceeding, or both. 

Investigators give the Garrity warnings when they cannot rule 

out the possibility of a criminal prosecution and need to make 

sure that an interviewee’s statements will be admissible. 

When an investigator gives the Garrity warnings, the 

statements the investigator obtains and evidence derived from 

them will ordinarily be admissible in future criminal, civil, 

internal, and administrative proceedings targeting the 

interviewee. 

The Kalkines warnings stand in stark contrast, and 

investigators should not give them if a future criminal 

prosecution is contemplated without first consulting with 

agency counsel and prosecutors. While the full text of the 

Department of Justice’s Kalkines warnings appears in the 

Legal Training Reference Book, the parts most pertinent to 

this section read as follows: 
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The purpose of this interview is to obtain 

information which will assist in the determination 

of whether administrative action is warranted . . . 

• You are going to be asked a number of 

specific questions concerning the 

performance of your official duties. 

• You have a duty to reply to these questions, 

and agency disciplinary action, including 

dismissal, may be undertaken if you refuse 

to answer, or fail to reply fully and 

truthfully. 

• The answers you furnish and any 

information or evidence resulting therefrom 

may be used in the course of civil or 

administrative proceedings. 

• Neither your answers nor any information 

or evidence which is gained by reason of 

such statements can be used against you in 

any criminal proceedings, except that if you 

knowingly and willfully provide false 

statements or information in your answers, 

you may be criminally prosecuted for that 

action. 

Because the Kalkines warnings threaten the interviewee with 

discipline, giving them will ordinarily render both statements 

and all evidence derived from them inadmissible in a future 

prosecution of the interviewee. The government can still use 

the statements and other evidence traceable to such an 

interview to impose discipline in connection with internal, 

agency, and civil proceedings. 
380

b. Effects of the Kalkines Warnings on Future 

Criminal Prosecutions 

While Kalkines warnings do not automatically bar the 

government from prosecuting an interviewee in the future, 

their practical impact comes very close. Should the 

government decide to prosecute an interviewee subjected to 

the Kalkines warnings, that interviewee becomes entitled to a 

hearing outside the presence of the jury. In that hearing, the 

government will have to prove that every piece of evidence that 

it plans to offer at trial originated from a wholly independent 

source that could not have been tainted by the interviewee’s 

coerced statement. Because satisfying that burden is so 

difficult, only on the rarest of occasions will the government 

try to prosecute a public employee or contractor after Kalkines 

warnings. 

For these reasons, prior to conducting a noncustodial interview 

of a government employee or contractor accused of potentially 

criminal misconduct, investigators should always seek legal 

advice from both agency counsel and prosecuting authorities. 

17.3.5 Special Circumstances

a. Federal Grand Jury Proceedings 

Privilege issues often arise during federal grand jury 

proceedings. As discussed in more detail in this Handbook’s 

chapter on Federal Court Procedures, one of a federal grand 

jury’s powers is to investigate federal crimes. A grand jury 

investigates using subpoenas to compel witnesses to appear, 

testify, and produce documents, records, objects, and things. 

1. Scope and Nature of Protection for Testimony 
381

While the Privilege can protect a witness subpoenaed to testify 

before a federal grand jury from answering an incriminating 

question, its protection is not automatic. The Privilege only 

protects the witness who responds to an incriminating 

question by asserting it.

In contrast, the witness who chooses to answer an 

incriminating question cannot later assert that the Privilege 

protects the answer. By answering, that witness gives up, or 

in legal terms “waives,” the Privilege’s protections. Thereafter, 

that witness’s testimony will ordinarily be admissible to prove 

guilt in a criminal trial.

2. Use Immunity

Under rare, specialized circumstances, the government can 

ask a district court to compel a witness who otherwise validly 

invokes his or her Privilege to testify. When the court grants 

the government’s request, it issues an order that legally 

compels such a witness to testify. That same order must also 

give the witness a specific set of benefits known as formal “use 

immunity.”

Formal use immunity, also called “statutory immunity,” limits 

the way the government can use the compelled witness’s 

testimony in two critical ways. See 18 U.S.C. § 6002 and 

Justice Manual 9-23.110 - Statutory Authority to Compel 

Testimony.

First, the government cannot use the content of the witness’s 

testimony to prove that the witness is guilty of any crime other 

than committing perjury while giving the immunized 

testimony. Second, the government cannot use any evidence 

that it obtained solely because of what the witness said when 

testifying at the witness’s criminal trial. Once a court grants 
382

use immunity to a witness, that witness cannot lawfully refuse 

to answer any incriminating question.

The protection that use immunity affords to a witness is 

subject to two important limitations. First, use immunity does 

not protect the witness from prosecution when adequate 

evidence that is not the product of the compelled testimony is 

available. Second, because use immunity does not entitle a 

witness to lie, the government can still prosecute a witness 

who lies under oath for perjury.

3. Producing documents, records, objects, and things

The law requires that both artificial entities, such as 

corporations and labor unions, and human beings comply with 

a grand jury’s subpoena for documents, records, objects, and 

things. While an artificial entity has no Privilege to invoke in 

the first place, even a human being’s Privilege does not protect 

the contents of subpoenaed materials that exist at the time of 

the subpoena. Consequently, a criminal foolish enough to 

record his most private thoughts about his crimes in a 

handwritten, personal diary cannot rely on his personal 

Privilege to protect the diary’s contents from a subpoena 

because the government did not compel him to write in the 

diary in the first place.

Although the Privilege does not protect the contents of 

subpoenaed materials, under some circumstances, it can 

nonetheless afford a limited form of protection called “act of 

production immunity.” Recalling that a person can 

communicate incriminating testimonial evidence by acting, an 

individual human being who must comply with a subpoena by

producing a document, record, object, or thing necessarily 

communicates mental information by doing so. Specifically, 

from the fact that the person produced the materials, a jury 

could infer that the person knew that he or she possessed the 

materials, that they were responsive to the subpoena, and that 
383

the materials were authentic, which are all important facts at 

trial. Consequently, courts protect individuals who claim the 

Privilege under such circumstances by banning evidence 

showing that the person produced the materials.

Importantly, act of production immunity is a personal 

protection extended only to the individual, flesh-and-blood 

human being who produced materials. Moreover, artificial 

entities like corporations and other individuals are not entitled 

to any protection.

4. Illustration

A telemarketing fraud investigation targets a small 

corporation, its CEO, and its information technology 

administrator. During the investigation, a reliable informant 

tells the investigating officer that the CEO keeps a personal 

diary on the corporation’s servers. In it, the informant tells the 

investigator, the CEO has recorded her most personal 

thoughts, including details relating to how she orchestrated 

the fraud on behalf of the corporation. Consequently, the 

investigator obtains and serves a grand jury subpoena that 

orders the corporation’s “record custodian,” that is, a person 

who is responsible for maintaining the corporation’s records, 

to produce an electronic copy of the diary. Thereafter, the 

investigator learns that the information technology 

administrator, who also serves as the corporation’s record 

custodian, has responded to the subpoena by asserting his 

personal Privilege.

Understanding the answers to the following questions should 

help law enforcement officers feel confident that they have 

mastered the overwhelming majority of the Fifth 

Amendment’s most important points:

• What protections does the Privilege give the CEO? None. 

Even though the diary contains information from the 
384

CEO’s brain (testimonial evidence) that prosecutors 

could introduce at her criminal fraud trial 

(incriminating), the CEO wrote her thoughts in the diary 

before the grand jury issued the subpoena (no 

government compulsion). Consequently, the CEO’s 

Privilege is not triggered, which means that she cannot 

rely on it to prevent a corporate record custodian from 

complying with the subpoena, to exclude evidence about 

the record custodian’s act of production, or to exclude the 

diary’s contents at her trial.

• What protections does the Privilege give the information 

technology administrator, who is responsible for 

producing the diary? Act of production immunity only. 

The grand jury subpoena (government compulsion), 

requires the administrator to produce the diary that the 

government will try to admit into evidence at the 

administrator’s trial to prove that the administrator is 

guilty of fraud (incriminating). At trial, the government 

will have to prove that the diary is what it purports to 

be. Because producing it to the grand jury confirms that 

the administrator knows the diary exists, that it is 

responsive to the subpoena, and that it is authentic 

(testimonial evidence), so long as the administrator 

asserts his Privilege before producing the diary, the 

court will give him act of production immunity. 

Consequently, the court will not allow the jury to know 

that the administrator produced the diary in response to 

the subpoena. If the government has no other evidence 

to show the diary is authentic, the administrator’s 

Privilege will bar the government from introducing the 

diary or its contents at the administrator’s trial.

• What protections does the Privilege give the 

Corporation? None. Even though the information 

technology administrator has limited, act of production 

immunity, the corporation has no Privilege because it is 
385

an artificial entity. Consequently, the corporation will 

not be able to use the Privilege to prevent its record 

custodian from producing the diary, and the government 

can present evidence at the corporation’s trial that the 

record custodian did so along with the diary’s contents. 

17.4 Miranda and Custodial Interrogation 

Prior to the Supreme Court’s decision in Miranda v. Arizona, 

the Constitution afforded every person the Fifth Amendment 

right to remain silent and the Sixth Amendment right to be 

represented by counsel once formally charged with a crime. 

Recognizing the physical and psychological coercion inherent 

in being held in custody in a police-dominated atmosphere, the 

Court mandated two additional rights. In doing so, the Court 

intended to mitigate the danger that coercion would lead to 

involuntary statements. 

First, Miranda gave every suspect the right to have a lawyer 

present during custodial interrogation without regard to 

whether formal charges were pending. Second was the right 

most familiar today – the right to receive what is now known 

as the Miranda warnings prior to any custodial interrogation. 

Law enforcement officers must master the conditions 

triggering Miranda rights and the necessary components of a 

valid waiver. 

17.4.1 When are Miranda Warnings Required? 

Knowing the three critical elements that trigger a suspect’s 

right to receive the Miranda warnings is the first step to 

mastering necessary skills. Those three triggers are (1) a 

suspect in custody, (2) subjected to interrogation, (3) by a 

known law enforcement officer or government agent. If any one 

of the three triggers is absent, Miranda warnings are not 

required. 
386

a. Trigger 1: Custody 

Miranda warnings are only required when a law enforcement 

officer or other government actor arrests a suspect or holds 

him or her in “arrest-like” custody. Consequently, the mere 

fact that a person is a suspect does not entitle him or her to a 

Miranda warning. 

Courts will determine a suspect is in custody for Miranda 

purposes if facts show that the suspect is (a) formally arrested 

or (b) subjected to conditions that amount to the functional 

equivalent of arrest. See the Fourth Amendment chapter for 

further discussion of the functional equivalent of arrest. While 

a formal arrest, marked with the telltale phrase “you are under 

arrest” or other, less-than-subtle physical tactics, is easy to 

spot, the functional equivalent of an arrest can be trickier. 

1. The reasonable person test 

Law enforcement officers subject a suspect to the functional 

equivalent of arrest when, considering the totality of 

circumstances, they restrain a suspect’s freedom of movement 

to such a degree that a reasonable person in the suspect’s 

position would believe that he or she was under arrest. 

 

When courts decide what a reasonable person would believe, 

only objective data capable of entering a person’s brain via one 

of the five senses (such as “suspect is in handcuffs,” “guns are 

pointed at suspect,” or “law enforcement officers ordered 

suspect to the ground”) is relevant. In contrast, because an 

individual person’s experiences of, impressions about, and 

conclusions based on the data that enters his or her brain (such 

as “I am under arrest,” “I feel threatened,” or “I am 

experiencing discomfort”) are subjective, they are not relevant. 

Consequently, when an officer decides to make an arrest but 
387

does not communicate that intent verbally or nonverbally, the 

officer’s unexpressed, subjective intent is irrelevant for 

determining Miranda custody. Only information that an 

objectively reasonable person could perceive with one of the 

five senses matters. 

One Supreme Court case, Orozco v. Texas, 394 U.S. 324 (1969), 

supplies a useful illustration of how courts apply the objective, 

reasonable person standard. There, law enforcement officers 

investigating an earlier murder learned that their suspect 

lived in a particular boarding house. Consequently, four police 

officers went to the boarding house at about 4:00 a.m., were 

admitted by an unidentified woman, and learned that the 

suspect was asleep in his bedroom. Thereafter, all four officers 

entered the bedroom and began to question the suspect. 

Because a reasonable person waking to find four police officers 

in his bedroom at 4:00 a.m. would have believed he or she was 

in arrest like custody, the Court found that Miranda warnings 

were required. Because the officers did not give the warnings, 

the Court suppressed the suspect’s statements. 

2. Factors relevant to the totality of circumstances 

The totality of circumstances is the cumulative, combined 

effect of all relevant, objectively perceivable conditions present 

during a suspect’s law enforcement encounter. While in theory, 

both relevant factors and their possible combinations are 

infinite, below are some of the most common factors that courts 

consider when deciding if a reasonable person would believe 

he or she was in custody for Miranda purposes: 

 

• Law enforcement officer statements: Telling a suspect 

that he or she is under arrest weighs in favor of finding 

that the suspect is under arrest. Telling a suspect prior 

to beginning an interrogation that he or she is “not under 

arrest,” “detained,” “free to leave,” or does not have to 

answer questions can weigh against custody. 
388

• Presence or absence of physical restraints: Applying 

handcuffs or confining a person to a particular space 

weigh in favor of a finding that a suspect is in custody, 

whereas the absence of restraining devices and a suspect 

whose ability to move is not restricted weigh against 

such a finding. 

• Encounter location: When an interrogation takes place 

in surroundings that are familiar to a suspect, such as 

his or her home or workplace, or in a neutral location, 

such as in public, such facts weigh against finding 

Miranda custody. When an encounter occurs inside a 

police station or law enforcement office, location can 

weigh in favor of custody. 

• Duration of Encounter: The shorter an interrogation, the 

less likely the courts are to find that an interviewee was 

in Miranda custody. 

• Juveniles: Where juveniles are concerned, as the age of 

the juvenile decreases, it weighs more heavily in favor of 

a finding that an interrogation is custodial. 

Howes v. Fields, 565 U.S. 499 (2012), provides another useful 

example of how courts weigh the totality of the circumstances. 

There, beginning between 7:00 p.m. and 9:00 p.m., armed law 

enforcement officers conducted a five to seven hour 

interrogation of a previously convicted inmate incarcerated in 

a Michigan prison. The interrogation, which ended at or about 

midnight, took place in a well-lit, average-sized conference 

room, and an accompanying correctional officer was required 

to escort the inmate both to and from it. At the interrogation’s 

outset and thereafter, interrogating officers told the uncuffed, 

unrestrained inmate that he could return to his cell whenever 

he wanted, but they did not tell him that he did not have to 

submit to an interview or give him Miranda warnings. During 
389

the encounter, the officers offered the inmate food and water, 

and they sporadically left the conference room door open. 

Despite the place, duration, and hour of the interrogation, the 

Supreme Court found that no Miranda warnings were needed 

because the inmate was not in custody for Miranda purposes. 

Other factors that courts in some circuits consider include 

whether a suspect has chosen to come to an interrogation, a 

law enforcement officer’s tone of voice during the 

interrogation, and the officer’s word choices. 

3. Miranda Custody versus Fourth Amendment 

“Person” Seizures

Not all Fourth Amendment seizures of persons result in 

custody for Miranda purposes. As explained in the Fourth 

Amendment chapter, a person is “seized” when, viewing the 

totality of circumstances, a reasonable person would believe 

that he or he is not free to leave or otherwise terminate an 

encounter. See also Use of Force Legal Aspects chapter. 

In contrast, Miranda custody arises only if a reasonable person 

in the suspect’s position would experience a restraint on 

freedom to the degree associated with formal arrest. Because 

the following temporary seizures of persons do not ordinarily 

create the type of police-dominated atmosphere associated 

with a formal arrest, they do not ordinarily require Miranda 

warnings: 

• Traffic Stops: Law enforcement officers are not 

ordinarily required to give Miranda warnings to people 

stopped for routine traffic violations before asking 

questions and obtaining statements. 

• Terry Investigative Stops and Detentions: So long as the 

duration and scope of a Terry stop fall within proper 

limits, an officer need not give Miranda warnings prior 
390

to questioning a subject. See further discussion of Terry 

stops in the Fourth Amendment chapter. 

• Temporary Detentions during Search Warrants: 

Ordinarily, a law enforcement officer need not give 

Miranda warnings to someone detained during a search 

warrant so long as the detention is temporary and 

limited. 

• Post-Conviction Prison Interrogations of Inmates Who 

Know They Are Free to Terminate the Encounter: 

Although courts require Miranda warnings and waivers 

before an officer interrogates a jail inmate in pretrial 

custody, warnings are not necessarily required to 

interrogate a convicted person serving a prison term. 

Reasoning that a convicted prison inmate does not 

experience the same kind of coercive pressures that 

concerned the Supreme Court in Miranda, courts do not 

ordinarily require Miranda warnings or waivers before 

an officer interrogates a prison inmate so long as the 

totality of circumstances show that the interrogation is 

voluntary. Consequently, while giving Miranda 

warnings and obtaining a valid waiver remains a safe 

approach, law enforcement officers who choose not to 

give warnings should, at a minimum, tell the inmate 

that he or she is free to terminate the encounter at any 

time. 

4. Best Practices When Miranda Custody is 

Questionable 

While any police/suspect encounter can become the functional 

equivalent of an arrest, Fourth Amendment “person” seizures 

most commonly do so when they exceed the nature, scope, 

and/or duration of the circumstances justifying them. Once 

circumstances that constitute the functional equivalent of an 
391

arrest arise, law enforcement officers must give Miranda 

warnings prior to interrogation. 

Unfortunately, the precise moment when a consensual 

encounter or a temporary “person” seizure becomes an arrest 

is not always clear. Moreover, some measures that are 

reasonably necessary under the circumstances, such as 

pointing guns at a detainee or placing him or her in handcuffs, 

tend to weigh heavily toward arrest. When confronted with 

such circumstances, law enforcement officers can consider the 

following mitigating options: 

• Option 1: After securing the suspect, officers may give 

the Miranda warnings and obtain a knowing, voluntary, 

and intelligent waiver of those rights before questioning 

the person. 

• Option 2: After securing the suspect, officers may advise 

the suspect that he or she is (1) not under arrest, (2) 

merely temporarily detained, and (3) not required to 

answer any questions. Preferably, an officer should also 

seek affirmative, verbal confirmation that the suspect 

understands each point. 

b. Trigger 2: Interrogation (i.e. Questioning) 

Under Miranda, interrogation occurs when a law enforcement 

officer uses words, actions, or a combination of the two to 

initiate questioning of a suspect who is in custody. 

Interrogation includes both express questioning and the 

functional equivalent of questioning. 

1. The Functional Equivalent of Interrogation 

A law enforcement officer engages in the functional equivalent 

of interrogation by using words or actions that he or she should 

reasonably expect are likely to elicit an incriminating response 
392

from someone in custody. Consider the following three 

illustrations in which federal circuit courts found that law 

enforcement officers engaged in the functional equivalent of 

interrogation: 

• An officer had a preexisting, antagonistic relationship 

with a suspect. During an encounter unrelated to the 

ultimate drug investigation, the officer held the suspect 

in Miranda custody. During ensuing, mutual verbal 

sparring, the suspect asked “sarcastically” whether the 

officer needed “anything else.” The court found that the 

officer’s response, “Oh, I don't know, you got any dope[?]" 

was the functional equivalent of interrogation because 

the officer should reasonably have expected it to elicit 

the suspect’s explosive, incriminating answer. United 

States v. Brown, 720 F.2d 1059, 1063 (9th Cir. 1983).

• An officer trying to locate a stolen firearm interrogated 

a suspect held in custody outside of a girlfriend’s 

apartment. When the suspect did not respond favorably 

to the officer’s hints that cooperation “would be met with 

leniency,” the officer went inside the apartment for 

several minutes, spoke to the girlfriend, and obtained 

written consent from her to search the apartment. 

Thereafter, signed consent form in hand, the officer 

exited the apartment and announced to everyone 

present, including the suspect, that he had consent to 

search. The court found the officer’s words and conduct 

constituted the functional equivalent of interrogation 

because, considered collectively, they were reasonably 

likely to illicit the incriminating comments that the 

suspect thereafter made. United States v. Jackson, 544 

F.3d 351, 354-55 (1st Cir. 2008).

• During a rape and murder investigation, a conspirator 

confessed and implicated the suspect as a partner in the 

crime. Thereafter, officers dispatched the confessor, 
393

unescorted, to an interrogation room where the suspect 

was with instructions to tell the suspect about the 

confession. The confessor followed the instructions, and 

the suspect thereafter made statements. The court found 

that even though neither the confessor nor police asked 

the suspect a question, sending the confessor to confront 

the suspect was a “psychological ploy” that could qualify 

as the functional equivalent of interrogation. Nelson v. 

Fulcomer, 911 F.2d 928 (3d Cir. 1990). 

2. Neither Interrogation nor the Functional 

Equivalent 

Clearly established law allows law enforcement officers to 

question suspects without first giving Miranda warnings 

under the following circumstances: 

• Routine Booking Questions: Law enforcement officers 

may ask an arrestee routine booking questions such as 

name, address, height, weight, eye color, date of birth, 

and current age. 

• Exigent Public Safety Concerns: When faced with 

exigent public safety concerns, Miranda warnings are 

not required so long as law enforcement officers ask only 

the questions necessary to address the safety concern. 

Questions such as “Where is the bomb?” or “Where is the 

gun?” fall squarely within this category. Questions such 

as “Who told you to put the bomb there?” and “Where did 

you get the gun?” do not. 

For example, in one case, police chased a rape suspect 

into a supermarket, apprehended him at gunpoint, 

and handcuffed him. Seeing that the suspect was 

wearing an empty shoulder holster, an officer asked 

him where the gun was. After the suspect responded 

by nodding in a direction and saying, "the gun is over 
394

there," the officer retrieved it. The Supreme Court 

said that the officer, without providing Miranda 

warnings, was allowed to ask questions to locate the 

missing gun because the gun posed a danger to public 

safety. 

• Law Enforcement Officer Safety Questions: “Do you 

have any guns or sharp objects on you?” falls within the 

public safety exception. 

• Requests for Consent to Search: Because requesting 

consent to search does not seek testimonial evidence 

that the Fifth Amendment privilege against SelfIncrimination protects, the overwhelming majority of 

federal circuits agree that asking for consent to search is 

neither interrogation nor its functional equivalent. 

• Physical Sobriety Test Dialogue: Law enforcement 

officers may engage in dialogue consisting primarily of 

carefully scripted instructions and limited to carefully 

worded inquiries to ensure that a suspect understands 

the instructions when administering physical sobriety 

tests. 

• Implied Consent and Breathalyzer Dialogue: Explaining 

a breathalyzer test and the implied consent law, 

confirming that a suspect understands instructions, and 

confirming that the suspect wishes to submit to the test 

are not interrogation. 

Moreover, courts admit unwarned, spontaneous, and 

volunteered statements from a custodial suspect so long as 

what the suspect said was unprompted by interrogation or its 

functional equivalent. 

3. Trigger 3: A known law enforcement officer (or 

other government actor) 
395

Finally, a custodial suspect is only entitled to Miranda 

warnings if the suspect knows the person asking questions is 

a law enforcement officer or government agent. Neither a 

purely private party’s interrogation nor questioning by 

someone that the suspect does not know is a law enforcement 

officer or government actor, such as an informant or 

undercover agent, will suffice. 

For example, in Illinois v. Perkins, 496 U.S. 292 (1990), a jail 

inmate made incriminating statements to an undercover agent 

posing as his cellmate. Pointing out that because the suspect, 

who did not know that the agent was a police officer, could not 

have believed that a fellow inmate had the power to influence 

pending charges, the court concluded that the policedominated atmosphere that it crafted Miranda rights to guard 

against was not present. Consequently, the Supreme Court 

found the suspect’s unwarned statements admissible at his 

trial. 

17.4.2 Miranda Warning Best Practices 

The Supreme Court mandated that Miranda warnings precede 

all custodial interrogations as a procedural safeguard to 

ensure that every suspect has a full, fair understanding of his 

or her rights before questioning begins. Since the Miranda 

case, the Court has declined to mandate any one version of the 

Miranda warnings. Consequently, any agency-approved 

version with the below content will ordinarily suffice: 

• You have the right to remain silent; 

• Anything you say can and will be used against you in 

court; 

• You have the right to consult with counsel before 

answering questions and to have counsel present during 
396

questioning; 

• If you cannot afford a lawyer, one will be appointed 

before questioning; and 

• You may choose to exercise these rights at any time. 

Although courts do not require any particular version of the 

Miranda warnings, the best practice is for every new law 

enforcement officer to settle on a single card or other 

preprinted version of the Miranda warnings. Thereafter, that 

officer should use only that card to read the Miranda warnings, 

word for word, exactly the same way, every single time. The 

officer who follows these guidelines will always be able to 

testify truthfully and confidently to giving proper warnings in 

every case. 

Equally important, law enforcement officers must be sure to 

read all of the warnings as written, even when a suspect claims 

not to need them or says that he or she already knows the 

rights. Additionally, because courts require that warnings be 

“fresh,” the best practice favors re-administering Miranda 

warnings after a break in interrogation. 

17.4.3 The Three Components of a Valid Miranda Waiver 

Before the government can present evidence of a custodial 

suspect’s responses to interrogation during its case-in-chief at 

trial, it must convince the court that the suspect validly waived 

his or her rights. 

a. A valid waiver satisfies three elements. 

The government satisfies its burden of proving a valid waiver 

with evidence showing that under the totality of the 

circumstances the suspect’s waiver was (1) knowing, (2) 

intelligent, and (3) voluntary. 
397

Satisfying the first two elements is ordinarily very 

straightforward. For a waiver to be knowing and intelligent, a 

suspect must be fully aware of the nature of the right at issue 

and the consequences of abandoning it. Ordinarily, proof that 

an officer correctly read all of the content on a legally sufficient 

agency-issued Miranda card, in a language that the suspect 

understands, suffices. 

The showing needed to satisfy the third element – 

voluntariness – generally requires the same, detailed evidence 

needed to show that a suspect voluntarily waived his or her 

Fifth Amendment privilege against self-incrimination. 

Meeting this burden usually requires more than just 

testimony about the conditions present when law enforcement 

officers obtained a suspect’s waiver. Most often, testimony 

must also describe the totality of circumstances present from 

the moment the suspect knew that a law enforcement officer 

or other government actor was present to the moment when 

the suspect’s interrogation ended. Consequently, officers 

should take care to preserve the information needed to testify 

fully and accurately about the relevant conditions. 

b. Forms of Miranda Waivers 

A Miranda waiver can take two forms - express or implied. A 

suspect gives an express waiver by unequivocally 

acknowledging in spoken or written words that he or she 

understands the Miranda rights, wants to waive them, and 

does not wish to exercise them. A suspect gives an implied 

waiver by responding equivocally or not at all to Miranda 

warnings and thereafter making a voluntary statement. 

While prosecutors prefer express waivers simply because they 

are strong proof of intent, a voluntarily given, implied waiver 

is also effective. Moreover, an oral or implied waiver from a 

suspect who has refused to sign a written waiver is also valid. 
398

17.4.4 What to Do When a Suspect Invokes a Miranda 

Right 

A suspect cannot validly invoke his or her Miranda rights 

unless and until the three required triggering conditions are 

present. Once they are present and a law enforcement officer 

administers Miranda warnings, that suspect has four options 

– (1) answer questions after waiving the Privilege and the 

Miranda right to counsel during custodial interrogation; (2) 

assert both rights; (3) assert only the right to remain silent; or 

(4) assert only the Miranda right to counsel. 

When a suspect decides to do anything other than waive both 

rights and answer questions, all law enforcement officers must 

immediately stop all interrogation about all matters. Whether 

any law enforcement officer can thereafter reinitiate that 

suspect’s interrogation while he or she remains in custody 

depends on which right the suspect has invoked.

a. Suspect invoked the right to counsel 

Courts view an invocation of the right to counsel as a suspect’s 

implicit assertion that he or she is incapable of undergoing 

custodial interrogation on any subject without a lawyer. 

Consequently, the general rule is that once a custodial suspect 

clearly invokes the right to counsel, either alone or with the 

right to silence, no law enforcement officer may reinitiate 

interrogation about any crime except under one of the 

following three very limited circumstances: 

• a defense lawyer is with the suspect, 

• the suspect is a pretrial detainee released from custody 

for at least 14 days before an officer reinitiates, or 

• law enforcement authorities return an invoking prison 
399

inmate to ordinary prison life for at least 14 days before 

reinitiating. 

Outside these three situations, once a custodial suspect 

invokes the right to counsel, courts will suppress the results of 

all custodial interrogations that follow. This rule applies even 

when a new officer who does not know the suspect invoked the 

right to counsel interrogates that suspect who is still in 

custody in good faith after obtaining a valid Miranda waiver. 

1. Invocation must be clear 

Suspects must communicate their intent to invoke the right to 

counsel clearly. Courts define “clear” invocations as 

statements that a reasonable officer should understand as 

requests for a lawyer. 

Importantly, a suspect does not have to say “lawyer” or 

“attorney.” Instead, statements that, when viewed in context, 

communicate a desire for a lawyer, are sufficient. For example, 

the suspect who responds to an officer’s reference to the right 

to counsel with “Yeah – I’d like to do that” has unequivocally 

invoked the right to counsel. 

2. Ambiguous Statements 

In contrast, statements that would leave a reasonable officer 

unsure about whether the suspect wishes to invoke the right 

to counsel are not enough to trigger the obligation to stop 

asking questions. For example, because remarks such as 

“Maybe I should talk to a lawyer," and questions such as “Do I 

need a lawyer?” are ambiguous, officers confronted with them 

may continue an interrogation. When confronted with unclear 

or ambiguous statements such as these, best practices favor 

asking whether a suspect actually wants a lawyer. 

b. Suspect Invokes Only the Right to Silence 
400

In contrast, if the suspect invokes only the right to silence, 

then no law enforcement officer may reinitiate interrogation of 

that subject about any crime prior to a “cooling off” period. A 

sufficient cooling off period must last more than two hours. A 

suspect can assert the right to remain silent by simply telling 

a law enforcement officer that he or she does not want to talk 

or using other words to the same effect. 

c. Suspects Who Initiate Investigation-Related 

Conversation 

While the type of Miranda right that a suspect invokes can 

limit or eliminate a law enforcement officer’s ability to 

reinitiate interrogation, none of those constraints apply when 

an invoking suspect thereafter reinitiates investigationrelated communication. For example, a suspect who invokes 

the right to silence, the right to counsel, or both and thereafter 

asks to speak with an investigating officer “again,” reinitiates 

the interrogation. Similarly, the same suspect who asks 

questions such as “What is going to happen to me now?”, “What 

evidence do you have against me?”, or “What penalties am I 

facing?” also reinitiates interrogation. 

Once a suspect reinitiates interrogation, officers may resume 

questioning. Under such circumstances, officers should 

administer “fresh” Miranda warnings if more than a very short 

period has elapsed since the initial warnings. 

Law enforcement officers should be careful to distinguish 

reinitiating inquiries and questions from suspect 

communications that do not. Requests for water, a bathroom, 

to use a phone, and the like are not reinitiating inquiries. 

Likewise, a suspect who merely responds to booking questions 

has not reinitiated contact. 
401

17.4.5 Effects of Miranda Violations 

This section outlines the three most common types of Miranda 

violations, their consequences, and cures (to the extent that 

they are curable). 

a. Simple Failure to Warn – Good Faith Errors are 

Curable 

When a law enforcement officer does not give Miranda 

warnings before questioning a custodial suspect, the court 

suppresses the suspect’s resulting statements. Ordinarily, 

courts do not suppress physical or record evidence that officers 

used the unwarned statement to find. 

So long as an officer did not purposely fail to give Miranda 

warnings during a first interrogation, and so long as the 

suspect is willing to waive Miranda rights and give a second 

interrogation, statements given during the second 

interrogation are admissible. Should such circumstances call 

for a second interrogation, best practices favor attempting it in 

a different location, using a different officer, and waiting long 

enough to “cleanse” coercion arguably lingering from the first 

interrogation. 

In contrast, when evidence shows that a law enforcement 

officer deliberately decided to withhold Miranda warnings 

prior to an interrogation, courts suppress both the unwarned 

and the warned statements. Consequently, withholding 

warnings during an initial interrogation as a psychological or 

strategic ploy is not only improper but also ineffective. 

b. Failure to Honor a Suspect’s Invocation of Right to 

Silence or Counsel – Not Curable 
402

Courts also suppress statements obtained by interrogating a 

custodial suspect who has clearly invoked the right to silence 

or counsel. As noted above, if the suspect only invoked the 

right to silence, then waiting more than two hours, 

reinitiating, giving proper Miranda warnings, and getting a 

valid waiver can still generate an admissible statement. 

Reinitiating too early or reinitiating repeatedly will result in 

suppression. 

In contrast, law enforcement officers simply must not attempt 

to reinitiate an interrogation once a suspect invokes the right 

to counsel because courts will always suppress ensuing 

statements. Moreover, in some rare cases, courts have gone 

even further by suppressing both statements and evidence 

identified because of them when officers failed to honor a 

suspect’s invocation of the right to counsel. Consequently, 

after a custodial suspect invokes the right to counsel, he or she 

is off limits to officers except under the very narrow 

circumstances described in Sections 17.4.4 b. and c. 

c. Obtaining an Involuntary Waiver – Not Curable

Whether the Miranda or the Fifth Amendment voluntariness 

tests are at issue, courts assess voluntariness using the 

principles outlined in Section 17.3.3. Importantly, for most, if 

not all practical purposes, when a court finds that a suspect’s 

Miranda waiver was involuntary, it prevents a violation of the 

suspect’s Fifth Amendment rights by suppressing both the 

involuntary statement and all other evidence that the 

statement helped law enforcement officers identify pursuant 

to the exclusionary rule. See Fourth Amendment Chapter for 

discussion of the exclusionary rule. Consequently, all facts 

that come directly or indirectly from the suppressed statement 

will be inadmissible at trial unless the government can prove 

that it obtained them from an alternative, wholly independent 

source unrelated to the original, tainted interview. 
403

17.5 The Sixth Amendment Right to Counsel 

Under the Sixth Amendment, every person formally accused 

of a crime has the rights to consult with a lawyer, have the 

lawyer investigate the case, and be represented in all critical 

stages of proceedings related to the crimes charged. Unlike the 

Miranda right to counsel, which can attach before formal 

accusation happens, only “formal charging” triggers the Sixth 

Amendment right to counsel. 

17.5.1 Trigger: Formal Charging 

A suspect is formally charged when any one of the following 

events occur: 

• the suspect has his or her initial appearance in court; 

• a grand jury returns a criminal indictment charging the 

suspect with a crime; or 

• a prosecutor files a criminal information charging the 

suspect with a crime. 

Any one of these events – initial appearance, indictment, or 

information (I-I-I) – triggers the Sixth Amendment right to 

counsel. These events are discussed fully in the Federal Court 

Procedures chapter. 

17.5.2 Nature and Scope of the Sixth Amendment Right 

to Counsel 

Once triggered, the Sixth Amendment right to counsel gives a 

suspect the right to insist on having counsel present to help 

during all critical stages of criminal proceedings relating to the 

charged conduct. Because both (1) interactions by and on 
404

behalf of government actors that “deliberately elicit” 

statements from a suspect about the pending charges and (2) 

in-person lineups conducted to identify a suspect are critical 

stages criminal proceedings for Sixth Amendment purposes, 

absent a valid, informed waiver, every formally charged 

suspect has the right to have a lawyer present when these 

events occur. 

a. Deliberate elicitation 

The Sixth Amendment right to counsel forbids all government 

actors from deliberately eliciting statements from a formally 

charged suspect about the charged crime unless a lawyer is 

present or the suspect waives that right. Government actors 

“deliberately elicit” statements by asking questions or 

engaging in other conduct, either directly or indirectly through 

another person, to draw out a suspect’s statements about a 

charged crime. 

1. Distinguishing Deliberate Elicitation from 

Miranda Interrogation 

Unlike Miranda interrogation, which cannot take place unless 

the suspect knows that the questioner is a police officer or 

other government actor, using an undercover agent or an 

informant to elicit information from a charged suspect 

qualifies as deliberate elicitation that violates the Sixth 

Amendment. Consequently, once formal charges trigger the 

Sixth Amendment right to counsel, unless the suspect validly 

waives his or her right, any action beyond paying passive and 

unquestioning attention to a suspect’s spontaneous, 

unsolicited statements violates the suspect’s Sixth 

Amendment right to counsel – even when the actor is an 

undercover agent, confidential informant, secret cooperator, or 

cellmate assisting the government. 
405

For instance, in Massiah v. United States, 377 U.S. 201 (1964), 

the government arrested a suspect indicted for drug charges. 

Days after the court released the suspect on bond, agents 

outfitted a cooperating codefendant’s car with a radio 

transmitter. Thereafter, acting at agents’ direction, the 

cooperator engaged the suspect in a “lengthy conversation” 

while parked on a New York street with an agent listening 

remotely. The Supreme Court found that sending the 

cooperator to speak with the indicted suspect fell squarely 

within the scope of “deliberate elicitation” that could not take 

place without either a waiver or the defense lawyer’s presence. 

Consequently, the Court suppressed the suspect’s statements. 

2. Scope of Sixth Amendment Protection Compared 

to Miranda 

While the Sixth Amendment right to counsel and the Miranda 

right to counsel seem similar, they have at least two 

additional, critical distinctions. First, whereas Miranda gives 

a suspect the right to insist on having counsel present for 

interrogations that take place in custody, the Sixth 

Amendment right to counsel protects only charged suspects 

from both custodial and non-custodial government 

questioning. 

 

Second, whereas the Miranda right to counsel protects 

custodial suspects against interrogations about any crime, the 

Sixth Amendment right to counsel only protects formally 

charged suspects against inquiries about a formally charged 

crime. 

b. In-person lineups

The Sixth Amendment right to counsel applies to in-person 

lineups. Consequently, once an initial appearance, criminal 

indictment, or criminal information triggers a suspect’s Sixth 

Amendment right to counsel, unless he or she waives the right, 
406

the suspect is entitled to have counsel present when law 

enforcement officers conduct an in-person line-up. 

Identification procedures are discussed later in this chapter. 

17.5.3 Waiving the Sixth Amendment Right to Counsel 

Once a suspect is formally charged, the Sixth Amendment 

right to counsel requires a law enforcement officer to take one 

additional, crucial step. Specifically, regardless of whether the 

officer or the suspect initiates the encounter, and regardless of 

whether the suspect has a lawyer, before asking questions 

about charged conduct, the officer must administer warnings 

and obtain a valid waiver. 

Courts require warnings and a valid waiver even for a suspect 

charged in a sealed indictment or information who does not 

know about the charges. Moreover, once circumstances trigger 

the Sixth Amendment right to counsel, warnings and a waiver 

are required regardless of whether the suspect has a lawyer. 

While the Sixth Amendment right to counsel, the right to 

counsel under Miranda, and the Fifth Amendment privilege 

against self-incrimination are separate, distinct rights, the 

considerations and procedures for seeking and obtaining 

waivers are, for all practical purposes, identical. Once an 

indictment, criminal information, or initial appearance 

triggers a suspect’s Sixth Amendment right to counsel, law 

enforcement officers wishing to question that suspect must 

simply administer Miranda warnings just as they would to a 

person held in custody. 

 

So long as the charged suspect thereafter waives his or her 

right to counsel knowingly, intelligently, and voluntarily 

under the totality of the circumstances, a law enforcement 

officer may question the suspect. 

17.5.4 Avoiding a Bad Career Move 
407

Because conducting an initial appearance, obtaining a grand 

jury indictment, and filing a criminal information all require a 

prosecutor’s help in the federal system, a prosecutor becomes 

involved in a criminal case no later than formal charging. 

Moreover, in many cases, a prosecutor begins work on a case 

early in an investigation and well before these events. 

Knowing when a prosecutor has become involved in a case is 

critical because at that moment, for the reasons outlined 

below, the prosecutor becomes ethically responsible for the 

conduct of every member of the investigative team regardless 

of whether they know about or approve the conduct. Because 

ethics rules subject prosecutors to very serious professional 

discipline when an investigative team member deliberately 

contacts a suspect who is represented by a lawyer, once a 

prosecutor becomes involved in any case, no law enforcement 

officer should ever approach a suspect, whether formally 

charged or not, without first obtaining guidance from the 

prosecutor. Any other practice may subject the prosecutor to 

significant professional discipline up to and including, 

disbarment and termination. 

17.6 Prosecutorial Ethics and the McDade Amendment 

Wholly independent of the Fifth Amendment, Miranda, and 

the Sixth Amendment, the McDade Amendment, found at 28 

U.S.C. § 530B, requires every federal prosecutor to follow the 

ethical rules that apply to lawyers in each state where the 

prosecutor holds a bar license. Because the overwhelming 

majority of states deem efforts by one lawyer to contact 

someone represented by a different lawyer, either directly or 

indirectly, unethical, the law enforcement officer who tries to 

speak to a represented suspect jeopardizes the prosecutor’s 

license to practice law and the prosecutor’s job. 
408

The practical implications of these rules mean that once a 

prosecutor is assigned to work on a criminal investigation or 

prosecution, that prosecutor becomes ethically and 

professionally accountable for everything that every

investigative team member does – including actions that the 

prosecutor neither knew about nor approved. Consequently, to 

ensure trusting, productive relationships with prosecuting 

authorities, once a prosecutor is assigned to work on a case, 

investigators must consult with that prosecutor to vet 

potential interrogation targets carefully.

17.7 Fifth Amendment Due Process and Identification 

Procedures 

Identification procedures are techniques that investigators use 

to prove that a specific person is connected in some way to a 

crime. During an identification procedure, a potential witness 

has the opportunity to observe a suspect’s physical 

appearance, voice, handwriting, or other potentially 

identifying characteristic and decide whether they recognize 

it.

To be admissible in a criminal trial, law enforcement 

identification procedures must comply with the Due Process 

clause of the Fifth Amendment. That standard requires that 

under the totality of the circumstances, the procedure was not 

unnecessarily suggestive or conducive to an irreparable 

mistaken identification. 

An identification procedure is unnecessarily suggestive when 

law enforcement officers orchestrate it so that one particular 

suspect stands out from the others to implicitly suggest that 

the suspect is the perpetrator. The Supreme Court has long 

recognized that when a witness mistakenly identifies an 

innocent person, the witness may become convinced that the 

person he or she identified is the perpetrator of the crime. 
409

Therefore, courts have condemned unnecessarily suggestive 

identification procedures.

17.7.1 Types of Identification Procedures

Law enforcement officers use at least three types of procedures 

to determine if a witness or victim can identify the perpetrator 

of a crime – line-ups, photo arrays/displays and show-ups.

a. Line-Ups

In a line-up, a witness simultaneously views at least six 

physically present people to decide if the perpetrator is among 

them. While in-person line-ups are rarely used in federal law 

enforcement, the legal principles controlling them can aid 

understanding of undue suggestiveness.

For example, a line-up is unduly suggestive if a suspect meets 

the description of the perpetrator previously given by the 

witness - and the other line-up participants obviously do not. 

Further, line-ups where a suspect is the only participant 

wearing distinctive clothing or otherwise exhibiting an 

important characteristic in the witness’s description increase 

the danger of misidentification substantially. However, a lineup of “clones” is not required.

b. Photo Arrays

During a photo array, a witness views at least six photographs 

of persons either simultaneously or in sequence to determine 

whether the crime’s perpetrator is shown in them. Because 

presenting improper photo arrays can cause witnesses to 

misidentify a suspect, avoiding impermissible suggestiveness 

by observing the following guidelines is critical:
410

• The Number of Photographs: In general, any array must 

contain at least six photographs. 

• Persons Depicted in the Photographs: All of the persons 

depicted in a photo array should have the general 

characteristics that the witness described for the 

perpetrator. Further, the suspect’s picture should not 

stand out in relation to the other pictures. However, 

assembling a photo array of “clones” is not required. 

• Details in Photographs: When assembling a photo array, 

law enforcement officers must pay attention to details in 

the pictures that could cause a suspect’s picture to stand 

out in relation to “filler” photographs. A photograph that 

stands out from the others implicitly suggests to the 

witness that the perpetrator appears in it. 

• Presenting Photos to a Witness: Officers use two 

primary methods for conducting photo arrays – the 

simultaneous method and the sequential method. Either 

identification method can meet the due process 

standards of the Fifth Amendment. In the simultaneous 

method, officers show all of the pictures to the witness 

at the same time. The sequential method involves

showing a series of individual photographs to a witness 

one after the other. When using the sequential method, 

officers should place a known suspect’s picture no earlier 

than sixth in the sequence and preferably not last in the 

sequence. Additionally, officers must not emphasize any 

photograph or show a particular suspect’s picture 

repeatedly. 

• Providing Information about a Suspect: Telling a 

witness that one or more suspects were arrested can lead 

a witness to assume that a photograph of the arrested 

person will be in the array. Further, the witness can feel 

pressure to make an identification, even if he or she is 
411

not fully confident, for fear of jeopardizing the case. 

Consequently, some courts recommend affirmatively 

telling a witness not to assume that the perpetrator’s 

picture will be in an array. 

• Double-Blind Procedure: Some law enforcement 

agencies use a "double-blind" method when presenting a 

photo array. In that procedure, the officer showing the 

photo array to the witness does not know who is and is 

not a suspect. Using this procedure minimizes the risk 

that an administering officer will inadvertently cue a 

witness before, during, or after viewing photographs in 

an array.

• Preserve Photo Arrays as Evidence: Once law 

enforcement officers present a photo array to a witness, 

it becomes evidence that must be cataloged with a chain 

of custody and preserved without regard to whether the 

witness recognized anyone. 

c. Show-Ups 

During a show-up, a law enforcement officer displays a single 

suspect to a witness either in person or using a photograph to 

determine whether the witness recognizes the suspect. To be 

admissible at trial, the identification must ordinarily have 

taken place close in time and space to the witness’s original 

exposure to the suspect.

Despite their inherently suggestive nature, courts allow 

properly conducted show-ups because confirming that an 

individual apprehended close in time and place to a crime 

scene is, in fact, the perpetrator can help officers avoid 

mistakenly arresting innocent people. Further, allowing 

immediate show-ups before a suspect has a chance to alter his 

or her appearance and while the witness's memory is fresh can 

also help avoid misidentifications. 
412

While disfavored, properly conducted show-ups, including 

show-ups conducted while a suspect is in handcuffs, are not 

unduly suggestive. For example, in one case, a court admitted 

evidence that the witness identified the suspect during a showup when the procedure occurred less than an hour after the 

crime, police apprehended the suspect in the immediate 

vicinity of the crime, the police told the witness they did not 

know if the suspect was the perpetrator, and the police did not 

show incriminating evidence to the witness prior to the 

procedure. See United States v. Hawkins, 499 F.3d 703 (7th 

Cir. 2007). 

Courts are more likely to allow show-ups that take place 

shortly after a crime. Consequently, as more time passes after 

a crime, law enforcement officers should transition from showups to photo arrays or line-ups when interviewing prospective 

witnesses. 

Law enforcement officers get some leeway when they, rather 

than a civilian witness, identify a suspect in a show-up. For 

instance, in Manson v. Brathwaite, 432 U.S. 98 (1977), an 

undercover officer used a single photograph to identify a 

suspect the officer met undercover two days after the 

encounter. Although the Supreme Court criticized the method 

and found it suggestive and unnecessary, because the record 

showed that the officer was alone when he looked at it, that he 

looked at it with care and reflection, and that he was not 

subjected to undue pressure to make a positive identification, 

the likelihood of an irreparable misidentification was minimal. 

Consequently, the Court agreed that allowing the officer to 

testify about the pretrial identification and to identify the 

suspect at trial did not violate the Fifth Amendment Due 

Process clause. 
413

Chapter 18 - 

 

Fourth Amendment 

18.1 Introduction ............................................................. 417

18.2 Government Action .................................................. 418

18.3 A Fourth Amendment “Search” ............................... 419

18.3.1 The Jones Analysis: Physical Intrusion to Protected

Area..........................................................................419

18.3.2 The Katz Analysis: Reasonable Expectation of 

Privacy.......................................................................420

18.3.3 Common “Search” Areas ........................................422

18.3.4 Methods and Devices..............................................430

18.4 A Fourth Amendment “Seizure” .............................. 432

18.4.1 Police-Citizen Encounters ......................................433

18.4.2 Consensual Encounters (Voluntary Contacts)......433

18.4.3 Investigative Detentions (Terry Stops) .................434

18.4.4 A Terry Frisk ..........................................................441

18.4.5 Detaining Vehicles..................................................443

18.4.6 Arrests.....................................................................446

18.5 The Use of Race in Law Enforcement ...................... 446

18.5.1 The Constitutional Framework .............................447

18.5.2 Guidance for Federal Law Enforcement Officers .447

18.6 Probable Cause (PC) ................................................ 454

18.6.1 Defining Probable Cause........................................454

18.6.2 The Test for Probable Cause..................................455

18.6.3 Establishing Probable Cause .................................455

18.6.4 Using Confidential Informants to Establish 

Probable Cause ......................................................................456

18.7 The Exclusionary Rule ............................................. 458

18.7.1 The Rule ..................................................................458

18.7.2 The Exceptions........................................................459
414

18.8 The Plain View Seizure Doctrine ............................. 462

18.8.1 Lawful Position of Observation .............................462

18.8.2 The Incriminating Nature of the Item Must Be 

Immediately Apparent...........................................................462

18.8.3 Lawful Right of Access ...........................................463

18.9 Arrest Warrants ....................................................... 464

18.9.1 Arrest Warrant upon Complaint ...........................464

18.9.2 Arrest Warrant Upon Indictment or Information 464

18.9.3 The Form of a Federal Arrest Warrant.................465

18.9.4 Technical Aspects of Executing Arrest Warrants.465

18.9.5 Manner of Execution ..............................................466

18.9.6 Return of the Arrest Warrant................................466

18.10 Arrests ..................................................................... 467

18.10.1 Arrest Authority .....................................................467

18.10.2 Arrests Based on Outstanding Arrest Warrants..468

18.10.3 Right of Access: Entering a Home to Arrest .........469

18.10.4 Warrantless Arrests ...............................................471

18.11 Title 18 U.S.C. § 3109 .............................................. 472

18.11.1 The Statute .............................................................472

18.11.2 The Primary Purposes of the Statute....................473

18.11.3 A “Breaking” Under the Statute............................473

18.11.4 Requirements Under the Statute ..........................474

18.11.5 Exigent Circumstances and § 3109 .......................476

18.11.6 Violations of § 3109 and Suppression of Evidence478

18.11.7 No-Knock Warrants................................................478

18.12 Protective Sweeps .................................................... 479

18.12.1 What is a Protective Sweep? ..................................479

18.12.2 Scope of a Protective Sweep...................................479

18.12.3 Timing of the Protective Sweep .............................480

18.12.4 Two Kinds of Protective Sweeps ............................480

18.12.5 When the Arrest Occurs Outside the Home .........482

18.13 Searches Incident to Arrest ..................................... 482

18.13.1 Rationales for the Rule...........................................482
415

18.13.2 Requirements for a Search Incident to Arrest......482

18.13.3 Scope of a Search Incident to Arrest .....................484

18.13.4 Vehicles and Search Incident to Arrest.................487

18.14 Issuance of Federal Search Warrants ..................... 489

18.14.1 Who May Request a Federal Search Warrant? ....490

18.14.2 Who May Issue a Federal Search Warrant? .........490

18.14.3 Jurisdictional Requirements..................................491

18.14.4 Neutral and Detached Requirement .....................492

18.15 The Components of a Search Warrant Affidavit ..... 493

18.15.1 Establishing a Nexus..............................................494

18.15.2 Anticipatory Search Warrants...............................495

18.15.3 Particularity- The Place to Be Searched ...............496

18.15.4 Particularity - the Persons or Things to be 

Seized........................................................................497

18.15.5 Types of Items That Can Be Seized.......................498

18.15.6 False or Misleading Statements in the Affidavit..499

18.16 Telephonic Search Warrants ................................... 500

18.16.1 Purpose of F.R.Cr.P. 4.1.........................................500

18.16.2 Telephonic Warrants and Exigent 

Circumstances............................................................500

18.16.3 Who Can Issue Telephonic Warrants? ..................501

18.16.4 Procedural Requirements.......................................501

18.16.5 Recording and Certification Requirements...........503

18.17 Executing Federal Search Warrants ....................... 504

18.17.1 Who May Execute a Federal Search Warrant?.....504

18.17.2 Daytime Requirement for the Execution of Federal 

Search Warrant......................................................................505

18.17.3 Use of Force While Executing a Federal Search 

Warrant.....................................................................506

18.17.4 Presenting the Warrant Prior to Beginning the 

Search.......................................................................507

18.17.5 Answering the Telephone While Executing a Search 

Warrant.....................................................................507

18.17.6 Temporary Seizure of Weapons .............................507
416

18.17.7 Detaining Occupants - The Summers Doctrine ....508

18.17.8 Frisking and Searching Persons on the Premises 509

18.17.9 Permissible Search Locations on a Premises........510

18.17.10 Damage or Destruction of Property....................512

18.17.11 Preparing an Inventory.......................................512

18.17.12 Providing a Copy of the Warrant and 

Inventory...................................................................513

18.17.13 Warrant Return...................................................513

18.18 The Carroll Doctrine (Mobile Conveyance 

Exception)..................................................................513

18.18.1 Rationales for the Rule...........................................514

18.18.2 Prerequisites for a Search Under the Carroll 

Doctrine.....................................................................514

18.18.3 No “Exigency” Required to Conduct a Search Under

the Carroll Doctrine...............................................................515

18.18.4 Timing of a Search Under the Carroll Doctrine ...515

18.18.5 Scope of a Search Under the Carroll Doctrine......516

18.18.6 Homes/Curtilage and the Carroll Doctrine...........518

18.19 Searches Based on Exigent Circumstances ............. 518

18.19.1 Hot Pursuit .............................................................519

18.19.2 Destruction or Removal of Evidence .....................520

18.19.3 Emergency Scene....................................................521

18.20 Consent Searches ..................................................... 523

18.20.1 Voluntariness..........................................................523

18.20.2 Actual or Apparent Authority................................525

18.20.3 Scope of a Consent Search .....................................527

18.20.4 Third-Party Consent Situations ............................527

18.21 Inventory of Impounded Property ........................... 529

18.21.1 Justifications for an Inventory ..............................530

18.21.2 Requirements for an Inventory..............................530

18.21.3 Scope of an Inventory .............................................531

18.21.4 Location of an Inventory ........................................532

18.22 Administrative Searches ......................................... 532
417

18.22.1 Sobriety Checkpoints..............................................533

18.22.2 Driver’s License and Registration Checkpoints....533

18.22.3 Information-Gathering Checkpoints .....................533

18.22.4 Checkpoints for General Crime Control Purposes534

18.22.5 Administrative Inspections of Businesses ............534

18.22.6 Sensitive Government Facilities and Airports .....535

18.22.7 Border Searches – In General................................537

18.22.8 Routine Border Search ...........................................538

18.22.9 Non-routine Border Search....................................539

18.22.10 Geographic Limits of the Border ........................540

18.22.11 Persons and Objects Entering the Country .......542

18.22.12 Persons and Objects Leaving the Country.........542

18.23 Foreign Searches ..................................................... 543

18.23.1 Searches by Foreign Authorities ...........................543

18.23.2 Foreign Searches of Non-Resident Aliens By 

American Law Enforcement Officers....................................544

18.23.3 Searches of U.S. Citizens and Resident Aliens in 

Foreign Countries ..................................................................545

_______________________________________________________

18.1 Introduction 

The Fourth Amendment prohibits government intrusion upon 

the privacy and property rights of the people. The Fourth 

Amendment to the United States Constitution states that:

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, 

and particularly describing the place to be 

searched, and the persons or things to be seized.
418

The Fourth Amendment contains two distinct parts. The first 

part defines the right, which requires that all government 

searches and seizures be reasonable. The second part (the 

Warrants Clause) states that the government must establish 

probable cause to obtain search or arrest warrants, and that 

those warrants must particularly describe the place(s) to be 

searched and persons or things to be seized.

18.2 Government Action 

The Fourth Amendment regulates the actions of government 

officials. The term “government” does not refer solely to law 

enforcement conduct. Instead, the Fourth Amendment acts as 

a restraint on the entire government. For instance, the Court 

has held the Fourth Amendment applicable to the activities of 

civil authorities such as building inspectors, Occupational 

Safety and Health Act inspectors, firefighters entering 

privately owned premises to battle a fire, public school 

officials, and state hospital administrators.

The Fourth Amendment does not regulate private conduct, 

regardless of whether that conduct is reasonable or 

unreasonable. If a private citizen obtains evidence of a crime 

through a “private search,” the evidence may be admissible 

against a defendant, even if the private citizen acted illegally 

to conduct the search.

While the Fourth Amendment may not apply to a “private 

search” by a private citizen, it does apply when that citizen is 

acting as an instrument or agent of the government. The issue 

in such a search necessarily turns on the degree of the 

government’s participation in the private party’s activities. 

That question can only be resolved in light of all the 

circumstances. In making this determination, the courts 

typically focus on three factors: (1) Whether the government 

knows of or acquiesces in the private actor’s conduct; (2) 

whether the private party intends to assist law enforcement 
419

officers at the time of the search; and (3) whether the 

government affirmatively encourages, initiates, or 

participates in the private action. 

18.3 A Fourth Amendment “Search” 

The Fourth Amendment prohibits unreasonable “searches” 

and “seizures.” Because of this, an officer must first 

understand what exactly a “search” or “seizure” is for purposes 

of the Fourth Amendment. This section will focus on the 

definition of a “search,” while the following section will discuss 

the legal definition of a “seizure.” 

The Supreme Court applies two separate tests to determine 

whether government conduct is a “search” within the meaning 

of the Fourth Amendment. As a result, the Fourth Amendment 

protects both privacy and property. 

18.3.1 The Jones Analysis: Physical Intrusion to 

Protected Area 

When the Fourth Amendment was adopted, the traditional 

definition of a “search” was based on a common-law trespass 

analysis and required a physical intrusion onto one of the four 

constitutionally protected areas (persons, houses, papers, and 

effects). A defendant could not make a successful Fourth 

Amendment challenge to a government “search” of property 

unless the defendant owned or had a lawful right to possess 

the property. Ownership or rightful possession of property 

remained a necessary requirement in the definition of a Fourth 

Amendment “search” until the 1967 Supreme Court decision 

of Katz v. United States, 389 U.S. 347 (1967) as described 

below. 

In United States v. Jones, 565 U.S. 400 (2012), officers 

installed a global positioning satellite (GPS) tracking device on 

the undercarriage of the vehicle that the defendant’s wife 
420

owned and the defendant drove with his wife’s permission. The 

officers used the GPS tracking device to monitor the vehicle’s 

movements for twenty-eight (28) days. The officers did not 

have a court order or warrant authorizing them to install or 

monitor the tracking device. 

The Supreme Court found that the defendant’s vehicle was an 

“effect” – a constitutionally protected area listed in the text of 

the Fourth Amendment. By attaching the GPS tracking device 

to the defendant’s vehicle, the government physically intruded 

(trespassed) upon a constitutionally protected area. In 

addition, the government trespassed with the intent of 

obtaining information about the vehicle’s whereabouts during 

the tracking period. 

The Supreme Court applied the traditional common-law 

trespass analysis, holding the government’s physical intrusion 

was a “search.” As applied to GPS tracking devices on vehicles, 

the installation in Jones was the physical intrusion, and the 

subsequent monitoring provided the required intent to gather 

information. The Supreme Court held in Jones that a physical 

intrusion by the government into a “constitutionally protected 

area” for gathering information is a “search” under the Fourth 

Amendment. 

The Jones analysis requires both: (1) a trespass or physical 

intrusion by the government upon a constitutionally protected 

area; and (2) an intent to gather information. 

18.3.2 The Katz Analysis: Reasonable Expectation of 

Privacy 

In addition to the traditional common law trespass analysis in 

Jones, a Fourth Amendment “search” also occurs when the 

government intrudes upon an individual’s reasonable 

expectation of privacy (REP). 
421

The Katz reasonable expectation of privacy test added to, but 

did not replace, the common-law trespass test. In Katz v. 

United States, the Supreme Court held that an individual who 

enters a public telephone booth and shuts the door is entitled 

to privacy in his conversation. The defendant did not have an 

ownership or possessory interest in the public phone booth, so 

the traditional common law trespass test, as outlined in Jones 

above, did not apply. However, the Supreme Court recognized 

that the Fourth Amendment protects privacy, not just places. 

For Fourth Amendment purposes, an individual must have a 

subjective expectation of privacy that is also objectively 

reasonable in the eyes of society. First, by entering the phone 

booth and shutting the door, the individual has exhibited a 

subjective expectation of privacy. Second, this expectation is 

one that society is prepared to recognize as reasonable, based 

on, among other things, the fact that a door on a phone booth 

exists to allow those who use the phone to prevent people 

outside the booth from overhearing the conversations going on 

inside. 

Accordingly, what a person seeks to preserve as private, even 

in an area accessible to the public, may be constitutionally 

protected. The government’s use of a bugging device to 

eavesdrop on a conversation, as in Katz, would violate REP. 

On the other hand, if a nosy eavesdropper outside the booth 

who surreptitiously moved his unaided ear closer to a gap in 

the booth’s door could overhear the phone booth occupant’s 

words, the occupant would have no REP in those overheard 

words. 

In Katz, the Supreme Court established the standard for 

determining whether REP exists. The test for REP is twopronged: 

• First, the individual must have exhibited an actual 

(subjective) expectation of privacy, and 
422

• Second, that expectation must be one that society (as 

determined by the Supreme Court) is prepared to 

recognize as reasonable (objective). 

The absence of either prong of the test means that no REP 

exists and the government has not conducted a “search” under 

the Katz REP analysis. It is not a “search” to observe conduct 

that occurs openly in public, such as on a public street. 

Observations made from a lawful vantage point that develop 

probable cause are not a “search” under the Fourth 

Amendment. This is sometimes referred to as the Plain View 

Doctrine. This same principle applies to perceptions made 

through seeing, hearing, or smelling. For example, two people 

who meet and have a conversation in a public place, such as a 

restaurant, are not protected from having their actions 

observed, or their conversations overheard, by others in the 

restaurant. Any claims of privacy under those circumstances 

would be unreasonable. 

18.3.3 Common “Search” Areas 

Listed below are some of the more common REP “search” areas 

and situations. 

a. The Body 

Obtaining evidence directly from a person’s body requires a 

seizure of that person. Once a person is lawfully seized, such 

as during a lawful arrest, the issue of REP turns on whether 

the evidence sought is internal or external. It is well 

established that a physical intrusion, such as penetrating 

beneath the skin, infringes on an expectation of privacy that 

society is prepared to recognize as reasonable. Obtaining 

internal evidence such as blood, saliva, or urine samples from 

a person is a “search,” requiring a warrant, consent, or 

exigency. This rule applies to removing a physical object (such 
423

as a bullet) located beneath a person’s skin. Winston v. Lee, 

470 U.S. 753 (1985). A breathalyzer test maybe required, 

without a search warrant, as part of the search incident to 

arrest for drunk driving. Birchfield v. North Dakota, 579 U.S. 

438 (2016). It is not a “search” to obtain external evidence such 

as fingerprints, handwriting, or voice samples from a lawfully 

seized suspect. The government can also obtain external 

evidence from a subject by subpoena or a court order. 

Fingerprints left behind by the suspect, such as on an 

interview table, are fair game for law enforcement; therefore, 

securing them and using them creates no Fourth Amendment 

issue. 

b. Vehicles 

An individual’s reasonable expectation of privacy in a vehicle 

depends on whether the government is examining the exterior 

or interior of the vehicle. There is no expectation of privacy in 

the exterior of a vehicle. This applies to what officers may see 

from a lawful vantage point. The owner/operator generally has 

REP for the interior of a vehicle, at least against physical 

intrusion. An officer may lawfully observe an item sitting on 

the front seat in plain view. This does not necessarily give the 

officer the right to access the item seen, but it may provide 

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. 

Passengers in a vehicle that they neither own nor lease 

typically do not have REP in that vehicle, although the 

passengers will retain an expectation of privacy inside any 

personal property brought into the car with them (e.g., a purse 

or backpack). A passenger’s personal items are generally 

subject to a search or frisk when the officer is authorized to 

search the vehicle itself. (However, the owner/operator’s 

consent to search the vehicle does not authorize the officer to 
424

search a passenger’s personal items.) 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. As a 

general rule, an individual otherwise in lawful possession and 

control of a rental vehicle has a reasonable expectation of 

privacy in it, even if the rental agreement did not list that 

individual as an authorized driver. 

c. Homes 

The Supreme Court has repeatedly emphasized that the 

warrantless entry and search of a home is the chief evil against 

which the Fourth Amendment is directed. Whether or not a 

Fourth Amendment “search” has occurred requires an 

application of both the Jones analysis and the Katz REP 

analysis. 

Under a Jones analysis, a government physical intrusion or 

trespass into a person’s home with the intent to obtain 

information is a “search” under the Fourth Amendment. This 

includes the home’s curtilage. 

An individual has a high expectation of privacy within the 

confines of his or her home. REP exists even if the home is 

temporarily unoccupied. For example, occupants who are away 

on vacation retain REP in in a primary residence. An owner 

has REP in her vacation home even when she is not currently 

occupying it. 

The Supreme Court has also held that, in some circumstances, 

a visitor may have a legitimate expectation of privacy in 

someone else’s house. In such cases, REP depends on the 

visitor’s purpose for being at the home. For example, overnight 

guests of a homeowner are entitled to REP in the host’s home. 

Minnesota v. Olson, 495 U.S. 91 (1990). A social visitor 

normally does not have REP in the home visited. However, a 

person who is a frequent visitor to a home, and who has free 
425

access to and authority to control the premises at times, may 

have REP in the home. A commercial visitor generally has no 

REP in the home visited because of the purely commercial 

nature of the transaction, the relatively short period of time on 

the premises, and the lack of any previous connection with the 

homeowners or occupants. 

The protection afforded to homes extends to hotel and motel 

rooms. No less than a tenant of a house or the occupant of a 

room in a boarding house, a guest in a hotel room is entitled to 

constitutional protection against unreasonable searches and 

seizures. In determining whether a person has Fourth 

Amendment protection in a hotel or motel room, courts 

typically consider: (a) whether the person was the registered 

occupant of the room; (b) whether the person shared the room 

with another to whom it was actually registered; (c) whether 

the person ever checked into the room; (d) whether the person 

paid for the room; and (e) whether the person had the right to 

control or exclude others’ use of the property. Generally, a 

person’s Fourth Amendment protection in a hotel or motel 

room ends at checkout time, although this may not always be 

the case if some past practice allowed the individual to retain 

the room past checkout time. Tenants of hotels, motels, and 

even apartment and condominium buildings, typically have no 

Fourth Amendment protection in the common areas of those 

structures (e.g., the stairwells or hallways). 

d. Containers 

Most personal containers (e.g., purses, briefcases, backpacks, 

etc.), are an “effect” within the definition of the Fourth 

Amendment. In Jones, the Supreme Court noted that “effects” 

are one of the areas of constitutional protection. 

Under a Katz analysis, an individual has REP in his or her 

containers, at least where the design of the containers does not 

reveal their contents (such as a see-through backpack). 
426

Furthermore, a container is a protected “effect” under the 

Jones search analysis. Letters and other sealed packages are 

in the general class of effects in which the public at large has 

a legitimate expectation of privacy. The government agent’s 

knowledge of the contents does not necessarily deprive the 

owner of REP in the container; there is still the problem of 

access. An officer may need to obtain a warrant or make an 

arrest to search the container. 

e. Curtilage and Open Fields

As indicated earlier, there is a high degree of privacy inside 

homes. Included within the protections afforded a home are 

those areas that fall within a home’s “curtilage,” but not those 

areas of an individual’s property that are considered “open 

fields.” The term “curtilage” means the area in which the 

intimate activity associated with the sanctity of the home and 

the privacies of life takes place. For Fourth Amendment 

purposes, curtilage is part of the home itself. Therefore, an 

individual has REP in the curtilage surrounding his or her 

dwelling. The Supreme Court applied the Jones analysis to 

curtilage in Florida v. Jardines, 568 U.S. 237 (2013), which 

involved taking a drug detection K9 to the front porch door of 

Jardines’s residence to perform a free-air sniff for marijuana. 

The Court held the front porch was curtilage and the 

government trespassed in the attempt to obtain information 

regarding drug manufacturing. However, this does not 

prohibit an officer from conducting a knock-and-talk under the 

judicially recognized “knock and talk” exception. 

In contrast, “open fields” include any unoccupied or 

undeveloped area outside of the curtilage. An “open field” need 

not be “open” or a “field,” but could instead be a large tract of 

thickly wooded area on a person’s property. An “open field,” 

unlike the curtilage of a home, is not one of the protected areas 

enumerated in the Fourth Amendment. Therefore, the 

physical trespass by the government onto “open fields,” even 
427

in an attempt to obtain information, is not a “search” under 

the Jones analysis. In addition, there is no REP in “open 

fields.” Even if the area is fenced and the owner has posted “No 

Trespassing” signs, law enforcement officers may enter upon 

open fields for legitimate law enforcement purposes. Although 

officers can enter upon open fields without any Fourth 

Amendment justification, they may not intrude into structures 

on open fields (such as sheds, barns, or other containers) 

without a warrant or an exception to the warrant requirement, 

as the owner/occupier may retain REP in those structures. In 

addition, it is likely that any physical trespass into structures 

in an attempt to find evidence or obtain information may be a 

Fourth Amendment “search” under the Jones analysis. 

In most instances, it is easy to define the boundaries of a 

home’s curtilage, especially in a suburban area. However, in 

more rural settings, it can be more difficult to determine where 

“curtilage” ends and “open fields” begin. In United States v. 

Dunn, 480 U.S. 294 (1987), the Supreme Court set out four 

factors that courts must consider when determining whether 

a given area is part of a home’s curtilage: 

• The proximity of the area claimed to be curtilage to the 

home itself, although courts have repeatedly refused to 

fix a specific distance at which curtilage ends; 

• Whether the area is within a single enclosure (natural 

or artificial) that also surrounds the home; 

• The use of the area; 

• The steps taken by the resident to protect the area from 

observation by people passing by. 

No one factor controls, and courts must consider all four to 

answer the ultimate question. Is the area within the property 
428

surrounding the dwelling in which the intimate, daily, 

activities of private life occur? 

f. Government Workplaces 

In O’Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court 

addressed whether a government employee may establish REP 

in a government workspace. Government employees can, and 

often do, establish reasonable expectations of privacy in their 

government offices, filing cabinets, and computers. In 

determining whether a government employee has REP in his 

or her workspace, courts use a variety of factors. Among the 

most important are: 

• Prior notice to the employee, such as through the use of 

computer banners, that limit REP or state that no REP 

exists; 

• Common practices and procedures of the employer; 

• Openness and accessibility to the area or item in 

question; 

• Whether the position of the employee requires a special 

trust and confidence (e.g., a position that has security 

requirements); 

• Whether the employee has waived any REP in the 

workplace, such as through the collective bargaining 

process. 

If an employee does have REP in his or her workplace, an 

intrusion into that workplace is a “search” for Fourth 

Amendment purposes. 

Special rules for workplace searches take into consideration a 

government supervisor’s dual responsibility of ensuring the 
429

public’s work is being done while still protecting a government 

employee’s Fourth Amendment right to be free from 

unreasonable searches and seizures. Even when a government 

employee has REP in the workplace, a supervisor may search 

that space without a warrant while looking for work-related 

items, files, or materials. In addition, a supervisor who has 

reasonable suspicion of employee work-related misconduct, 

which may or may not also be criminal, is entitled to search 

the employee’s workplace without a warrant in order to 

determine whether such misconduct is occurring. The 

supervisor is limited in scope to searching only those areas 

where the evidence of misconduct could be located. Search of a 

government employee’s workplace purely for evidence of 

criminal misconduct unrelated to work requires either a 

search warrant or an exception to the warrant requirement. 

It is unknown how and to what extent the Jones analysis will 

affect government workplace searches in the future. 

g. Abandoned Property 

There is no REP in abandoned property. Abandonment occurs 

when an individual, either through words or actions, indicates 

an intention to disavow permanently any interest in the item 

or place. An individual may “abandon” an expectation of 

privacy in an object by denying knowledge or ownership of it, 

such as when a person, previously seen in possession of a 

suitcase, denies owning it. An expectation of privacy in an 

object may also be “abandoned” by discarding it, such as when 

an individual being pursued by law enforcement officers 

throws the object away. If unlawful police conduct causes an 

individual to abandon property, a court may find the 

abandonment was involuntary, and exclude any evidence or 

contraband the government found as a result of the 

abandonment. There must be a “nexus,” or connection, 

between the police misconduct and the abandonment in order 

for a court to find the abandonment involuntary. For example, 
430

a court might find the abandonment involuntary if it directly 

resulted from an unlawful seizure. 

Garbage poses its own legal problems. The key to determining 

whether an individual has REP in garbage is the location of 

the garbage at the time the officer encounters it. A person has 

REP in garbage located inside a home. However, there is no 

REP in garbage placed on the curb of a public street for final 

pick-up by a third-party (e.g., a trash collector). 

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. It is reasonable to believe the courts will 

apply the Jones analysis to garbage located on a suspect’s 

property. Therefore, the courts would likely consider a 

physical trespass onto curtilage with the intent to gain 

information or evidence from garbage to be a Fourth 

Amendment “search” without regard to REP. 

h. Mail

A person has REP only in the contents of first class and higher 

mail sent through the U.S. Postal Service. Postal inspection 

regulations govern intrusions into lower class mailings. There 

is no REP in the outside of a letter or package (e.g., words 

written on the envelope). There is REP in the contents of 

letters and packages sent through private carriers such as 

AirBorne Express, FedEx, DHL, and UPS. 

18.3.4 Methods and Devices 

a. Canine Sniffs 

The use of a dog to sniff a container, such as luggage, located 

in a public place, does not intrude into REP and is not a 

“search” for Fourth Amendment purposes. REP does not 
431

extend to the airspace around luggage or a container. Illinois 

v. Caballes, 543 U.S. 405 (2005).

b. Sensory Enhancements

The lawfulness of using devices to enhance an officer’s senses 

generally turns upon (1) the sophistication of the device, and 

(2) whether the activity the officer views occurs in public or in 

private. Binoculars and telescopes are fairly unsophisticated 

devices, so using them to observe public conduct does not 

generally turn surveillance into a search. However, when an 

officer uses these devices to observe conduct taking place 

inside a person’s residence, their use may be a “search.” An 

officer’s use of flashlights and searchlights for illumination is 

not a “search,” and officers can point them into a car, barn, or 

even a detached garage (this issue has yet to be resolved for 

the living area of a home). Darkness does not create REP that 

would not otherwise exist in daylight. The use of thermal 

imaging to detect the heat emanating from inside a residence 

is a “search,” requiring a warrant or exigent circumstance. 

Kyllo v. United States, 533 U.S. 27 (2001). 

c. Aircraft Overflights 

The use of overflights to detect criminal activity is common in 

law enforcement. When conducting overflights, officers may 

operate in navigable airspace (as determined by FAA 

regulations) to the same extent as private persons. In such 

situations, the Fourth Amendment does not require the 

government traveling in the public airways to obtain a 

warrant in order to observe what is visible to the naked eye. 

Observations of “open fields” from aircraft do not implicate the 

Fourth Amendment. It is unclear how the courts will treat 

drones in this analysis. 
432

d. Cell Site Location Information 

In Carpenter v. United States, 138 S.Ct. 2206 (2018), a 

majority of the Supreme Court held that the continuous 

tracking of the movements of a suspect for 7 days with cell site 

location information from a cellular service provider required 

a search warrant. The Court determined that individuals have 

a “reasonable expectation of privacy in the whole of their 

physical movements.” Accordingly, continuous monitoring of a 

suspect’s location, even in public places, and even based on 

historical information held by third parties, constitutes a 

search under the Fourth Amendment. 

18.4 A Fourth Amendment “Seizure” 

Not all interactions between law enforcement officers and 

citizens amount to a “seizure” under the Fourth Amendment. 

Some encounters are purely voluntary. When an officer’s 

encounter with a citizen is completely consensual, the Fourth 

Amendment does not apply. However, words and actions on an 

officer’s part may convert a voluntary, consensual contact into 

a “seizure.” It is also important for law enforcement officers to 

understand exactly when an individual is “seized” for purposes 

of the Fourth Amendment. 

A person is “seized” when either of two situations occurs: 1) 

police make a show of authority and a reasonable person would 

not feel free to leave or otherwise terminate the encounter; or, 

2) police intentionally apply force upon a person with the 

intent to stop that person’s freedom of movement. The latter 

is a seizure even if the person does not submit to the officer 

and is not subdued by the officer. A seizure occurs from the 

moment force was applied. Torres v. Madrid, 141 S. Ct. 989 

(2021).
433

Property is “seized” when there is some meaningful 

governmental interference with an individual’s possessory 

interest in that property. 

18.4.1 Police-Citizen Encounters 

There are three types of police-citizen encounters: (1) a 

consensual encounter; (2) an investigative detention or “Terry 

stop;” and (3) an arrest. Only the Terry stop and the arrest are 

Fourth Amendment “seizures.” The Fourth Amendment 

applies only when a “seizure” occurs.

18.4.2 Consensual Encounters (Voluntary Contacts) 

A consensual encounter is a brief, voluntary encounter 

between a law enforcement officer and an individual. An 

encounter is consensual if a reasonable person feels entitled to 

terminate it and leave at any time. A voluntary contact is not 

a “seizure” and therefore is not controlled by the Fourth 

Amendment. 

When conducting a consensual encounter, the officer may take 

any or all of the following actions without turning the contact 

into a “seizure.” First, the officer may approach an individual 

and ask questions, even incriminating questions. Second, the 

officer may request, but not demand, to see an individual’s 

identification. Third, the officer may identify him or herself 

and display credentials. Fourth, the officer may seek consent 

for a search or a frisk. 

In contrast, the officer might take actions during an encounter 

that could change the nature of the contact into a “seizure.” A 

court will scrutinize the officer’s actions during a voluntary 

contact to determine whether the encounter became a 

“seizure.” Among the factors courts will examine to determine 

whether a contact is a seizure include: 
434

• The time, place, and purpose of the encounter; 

• The words the officer uses; 

• Language or tone of voice indicating that compliance 

with the officer’s request is mandatory; 

• The number of officers present; 

• Whether the officer displays a weapon; 

• Any physical touching of the individual and amount of 

force used; 

• Retention of the individual’s identification or personal 

property; 

• Whether the officer notified the individual of the right to 

end the encounter (though this is not a requirement for 

voluntary contacts). 

18.4.3 Investigative Detentions (Terry Stops) 

Prior to 1968, encounters between law enforcement officers 

and citizens were categorized either as voluntary contacts, 

with no suspicion necessary, or arrests, which required 

probable cause. In Terry v. Ohio, 392 U.S. 1 (1968), the 

Supreme Court recognized a third type of police-citizen 

encounter, known as an investigative detention (“Terry” stop). 

An investigative detention is a compelled, brief, investigatory 

stop. To make an investigative detention, a law enforcement 

officer must have a reasonable, articulable suspicion that 

criminal activity is afoot and the person detained is somehow 

involved. 
435

a. The Requirements 

To conduct an investigative detention of a person, an officer 

must have “reasonable suspicion” that criminal activity is 

afoot. The officer does not have to know that a crime is being 

committed, or even that he or she is stopping the right suspect. 

In allowing investigatory detentions, Terry accepts the risk 

that officers may stop innocent people. While “reasonable 

suspicion” is a lower standard than “probable cause,” the 

officer must still have explainable (articulable) reasons to 

justify a temporary seizure of a person. “Criminal activity is 

afoot” means that the officer must reasonably suspect that: 

 

• A crime is about to be committed; 

• A crime is being committed; or 

• A crime has been committed. 

Some courts have disallowed investigative detentions for 

completed misdemeanors, unless some ongoing danger to the 

public still exists (e.g., recent reckless driving). However, if 

there is no other way to identify the subject who committed a 

misdemeanor, the court may still find the detention 

reasonable. Detentions to prevent or stop a misdemeanor from 

occurring are, of course, permissible with reasonable 

suspicion. When an officer has reasonable suspicion that a 

piece of personal property, such as luggage, contains 

contraband or evidence of a crime, he or she may detain it in 

the same manner that the officer may detain a person. 

To determine whether reasonable suspicion exists, courts look 

at the “totality of the circumstances” of each case. An officer 

must be able to articulate facts establishing the possibility 

that the person stopped is connected to criminal activity. The 

“totality of the circumstances” includes an officer’s specialized 

training and experience, which together with the facts, might 
436

lead the officer to a conclusion that an untrained person would 

not reach. For example, the officer may observe conduct that 

he or she believes is consistent with “casing” a store for a 

robbery. In such a situation, the officer’s training and 

experience allows him or her to determine that reasonable 

suspicion of criminal activity exists, even though all of the 

suspect’s conduct might appear perfectly innocent to an 

untrained observer.

b. Establishing Reasonable Suspicion

Law enforcement officers may use a variety of different 

investigative techniques to obtain enough information to 

establish reasonable suspicion to detain a person. For 

example, an officer’s personal observations may establish 

reasonable suspicion to conduct an investigative detention. 

Courts give a great deal of deference to an officer’s personal 

observations. Additionally, officers may establish reasonable 

suspicion from information provided by other law enforcement 

officers, sometimes referred to as “collective knowledge.” 

Information from an identified third party, such as a victim or 

witness, can also provide the facts to establish reasonable 

suspicion. Finally, officers may use information provided by 

reliable informants to establish reasonable suspicion for an 

investigative detention.

Often, informants or anonymous sources provide the

information to establish reasonable suspicion. While this is 

permissible, an officer sometimes needs to corroborate the 

informant’s information. The reliability of a tip provided by an 

informant depends on both the “quantity” and “quality” of the 

information. A tip from a confidential informant with an 

established, positive track record is usually considered reliable 

enough to establish reasonable suspicion with little or no 

corroboration. An anonymous tip can be insufficient, especially 

when the source’s truthfulness and basis of knowledge (i.e., 

how did the source acquire the information?) is unknown. In 
437

determining whether a tip contains enough verifiable 

information to establish reasonable suspicion, courts look to 

and rely upon the following factors:

• The amount of detail the source provided;

• Whether the source accurately predicted the suspect’s 

future behavior;

• Whether and to what extent law enforcement officers 

corroborate the source’s information;

• Whether the information is based on the source’s firsthand observations;

• Whether, by providing the information, the source is 

putting his or her anonymity in jeopardy;

• Whether the source provided the information in a faceto-face encounter with law enforcement officials; and

• The timeliness of the source’s report, that is, whether the 

information is “stale.”

Reasonable suspicion is a lower standard than probable cause, 

both as to the amount of evidence needed [“quantity”] as well 

as how strongly it establishes that criminal activity is afoot 

[“quality”].

c. Factors Justifying Investigative Detentions

The officer must be able to explain to a court why he or she 

decided to conduct an investigative detention of a suspect (i.e., 

what the officer heard, saw, or learned that led the officer to 

reasonably suspect that criminal activity was afoot). Many 

factors can justify an investigative detention. Even seemingly 

innocent or wholly lawful conduct can, in appropriate 
438

instances, establish reasonable suspicion that criminal 

activity is afoot. For example, an officer may reach different 

conclusions about the legal purchase of a crowbar by a person 

with an extensive criminal record for burglary than the same 

purchase by a carpenter with no criminal record. Some 

common factors officers can use to justify investigative 

detentions include, but are not limited to:

• A suspect’s nervous behavior, although this factor alone 

is of limited value and the officer should consider it in 

conjunction with the surrounding circumstances;

• A suspect’s criminal history, although standing alone, 

this factor will not establish reasonable suspicion;

• An officer’s knowledge of recent criminal conduct;

• The time and location of the situation;

• A suspect’s flight upon observing law enforcement 

officers, at least when combined with other factors;

• A suspect’s presence in a high crime area, at least when 

combined with other factors; and

• A suspect’s non-responsive behavior.

d. Duration of an Investigative Detention

An investigative detention must be reasonable in length. It is 

a temporary detention and can last no longer than needed to 

carry out the stop’s purpose. The officer should use the least 

intrusive investigative methods reasonably available to 

confirm or dispel the officer’s suspicion in a short time period. 

There is no “bright-line” rule as to the time limit for an 

investigative detention. The courts consider whether the 

officer diligently and reasonably pursued the investigation to 
439

confirm or dispel suspicions. The court may also consider the 

amount of force the officer used and the level of restriction the 

officer placed on the subject’s movement. A Terry stop must be 

reasonable in time, place, and manner. 

e. Use of Force During an Investigative Detention 

An officer’s use of force during an investigative detention must 

be objectively reasonable based on the totality of the 

circumstances known to the officer at the time. The Supreme 

Court has long recognized that the right to make an 

investigatory stop includes the right to use some degree of 

physical coercion, if needed, to carry out the stop. For example, 

an officer may handcuff a subject who will not comply with 

lawful orders or point a gun at a suspect the officer believes to 

be armed and dangerous. 

To determine whether the amount of force used during an 

investigative detention has turned a stop based on reasonable 

suspicion into an arrest, which requires probable cause, courts 

consider a number of factors, including: 

• The number of officers involved; 

• The nature of the crime and whether there is reason to 

believe the suspect is armed; 

• The strength of the articulable, objective suspicions; 

• The need for immediate action; and 

• The presence or lack of suspicious behavior or movement 

by the person under observation. 
440

f. Going From Investigative Detention to Arrest

An investigative detention may lead to a lawful arrest only if 

the officer develops probable cause to arrest. While an 

investigative detention only requires reasonable suspicion 

that criminal activity is afoot, an arrest requires probable 

cause that a crime is being, or has been, committed.

If an officer extends an investigative detention beyond the 

time it would take a reasonable officer to confirm or dispel her 

suspicions, a judge may find that the officer has made a “de 

facto” arrest. In determining whether an officer has made a de 

facto arrest, courts will consider a variety of factors, including:

• The purpose of the stop and the nature of the crime;

• Whether the officer diligently conducted the detention;

• The amount of force the officer used, and the need for 

such force;

• The extent to which the officer restrained an individual’s 

freedom of movement;

• The number of officers involved;

• The length and intensity of the stop;

• The time and location of the stop; and

• The need for immediate action.

A de facto arrest not supported by probable cause is an illegal 

arrest.
441

Any evidence the officer obtained as a result of the unlawful 

arrest (for example, evidence the officer found in the suspect’s 

pocket in the search incident to arrest) will be inadmissible. 

18.4.4 A Terry Frisk 

In Terry, the Supreme Court outlined the legal requirements 

for what has become known as a Terry frisk. If, during an 

investigative detention, an officer develops reasonable 

suspicion that the individual is presently armed and 

dangerous, he or she may conduct a limited search of the 

individual for weapons. This frisk is a pat- down of a suspect’s 

outer clothing to discover weapons that the individual could 

use against the officer during an investigative stop. The officer 

may not use a Terry frisk to look for evidence of a crime. There 

are two requirements for a Terry frisk: (1) the detention 

leading to the frisk must be lawful; and (2) the officer must 

reasonably suspect that the person is presently armed and 

dangerous. Arizona v. Johnson, 555 U.S. 323 (2009).

A frisk is a limited search for weapons. The officer may conduct 

the frisk after handcuffing the suspect. The officer may check 

the outside of the suspect’s clothing for weapons or any hard 

objects that could potentially be a weapon. Once the officer 

identifies a potential weapon or hard object that the suspect 

could use as a weapon, the officer is entitled to go inside the 

clothing and retrieve the object. When dealing with winter 

clothing, the officer may reach inside and beneath a heavy 

jacket and frisk underneath it to avoid missing any potential 

weapons. The officer may also frisk the area under the 

suspect’s immediate control, which can include any containers 

in the suspect’s possession. 

a. Factors Used to Justify a Terry Frisk 

As with investigative detentions, the officer may establish 

reasonable suspicion that a suspect is presently armed and 
442

dangerous through a variety of methods, including personal 

observations, information from other officers, and information 

from third parties, such as informants. The list of factors an 

officer may use to justify a Terry frisk is extensive. 

The following are some of the most commonly recognized 

factors: 

• A suspect, through past criminal history or association 

with violent gangs, has a reputation for being armed and 

dangerous; 

• A bulge in a suspect’s clothing indicating the possible 

presence of a weapon; 

• A “furtive” or other movement by the suspect indicating 

he is checking or adjusting a hidden weapon or ensuring 

that it remains concealed; 

• A suspect’s words and actions, such as refusing to 

comply with an officer’s directions to display his open 

hands; 

• A tip from a reliable informant that the suspect is armed 

and dangerous; 

• Reasonable suspicion that the suspect has committed a 

crime, such as armed robbery, burglary or drug 

trafficking, that by its nature indicates the likelihood 

that the perpetrator is armed and dangerous. 

This list is not exhaustive. The court will examine the totality 

of the circumstances to determine whether there were 

sufficient factors to establish reasonable suspicion that the 

suspect was presently armed and dangerous. 
443

b. The “Plain Touch” Doctrine 

While the purpose of a Terry frisk is to discover weapons, not 

evidence of a crime, the Supreme Court has held that an 

officer, under very specific circumstances, may seize 

contraband detected during the lawful execution of a Terry 

frisk. This is known as the “plain touch” doctrine. 

 

In order to seize evidence lawfully under the “plain touch” 

doctrine, an officer must meet two requirements. First, the 

frisk that leads to the discovery of the evidence must be lawful. 

Second, the incriminating nature of the item must be 

immediately apparent to the officer without manipulation. 

This means the officer must have probable cause to believe 

that the object encountered is contraband or criminal evidence 

based on what he or she initially felt during the frisk. The 

officer may not manipulate soft objects to identify an item. 

Minnesota v. Dickerson, 508 U.S. 366 (1993). The officer can 

retrieve hard objects, of course, as potential weapons, and can 

seize any evidence or contraband the officer encounters in that 

process. 

18.4.5 Detaining Vehicles 

The Fourth Amendment applies to seizures of the person, 

including brief investigatory stops such as the stop of a vehicle. 

Stopping an automobile and detaining its occupants is a 

Fourth Amendment “seizure,” even though the stop’s purpose 

is limited and the resulting detention quite brief. Whether 

stopping a person on foot or in a vehicle, the standard is the 

same. The officer must have, at a minimum, reasonable 

suspicion that the person stopped is engaged in criminal 

activity (Terry Stop). The officer may also conduct a stop if he 

or she has reasonable suspicion that a person in the vehicle is 

wanted for past criminal conduct, or reasonable suspicion the 

vehicle is carrying contraband. In Brendlin v. California, 551 

U.S. 249 (2007), the Supreme Court held that a passenger 
444

inside a vehicle is “seized” under the Fourth Amendment when 

the driver is stopped for a traffic offense. As discussed later in 

this chapter, this gives a passenger “standing” to challenge the 

legality of the vehicle stop. 

a. Permissible Actions During Vehicle Stops 

The Supreme Court has long recognized the very real dangers 

officers face when confronting suspects in vehicles. For that 

reason, during vehicle stops officers may take reasonably 

necessary steps to protect their personal safety. This includes:

• Ordering the driver and passengers out of the vehicle; 

• Ordering the driver and passengers to remain in the 

vehicle; 

• Using a flashlight to illuminate the interior of the 

vehicle; 

• Conducting license and registration checks; and 

• Questioning the driver regarding his or her travel plans.

b. Terry “Frisk” of a Vehicle 

In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court 

expanded the scope of a Terry frisk to include vehicles. Long 

provides that if an officer has reasonable suspicion that the 

driver or passenger in a vehicle is dangerous and may gain 

immediate control of a weapon, the officer may “frisk” that 

person, as well as the entire passenger compartment of the 

vehicle, including any unlocked containers in the passenger 

compartment. Some, but not all, federal appellate courts have 

extended this rule to include locked containers such as a locked 

glove compartment, when an occupant would have immediate 
445

access based on availability of the key. However, officers may 

not “frisk” the trunk of a vehicle. 

c. Duration of Vehicle Stops 

As with a traditional investigative detention, an investigative 

detention that occurs in a vehicle must be temporary and last 

no longer than is necessary to carry out the stop’s purpose. 

This means that once the officer issues the citation or warning 

and conducts all records checks, the stop must end and the

officer must release the driver. Should the detention continue 

past this point, the officer must show that the driver consented 

to the extension or that the officer established reasonable 

suspicion during the original stop of additional criminal 

activity afoot. If the officer fails to establish either of these 

additional requirements for extending the stop, the court may 

find the continued detention unreasonable under the Fourth 

Amendment. 

d. Pretextual Vehicle Stops 

Pretextual traffic stops are permissible. A “pretextual” traffic 

stop occurs when an officer uses a legal justification (e.g., an 

observed traffic violation) to stop an individual in order to 

investigate a different, more serious, crime for which no 

reasonable suspicion exists (e.g., drug trafficking). In Whren 

v. United States, 517 U.S. 806 (1996), the Supreme Court 

upheld pretextual traffic stops, noting that the 

constitutionality of a traffic stop does not depend on the actual 

motivation of the individual officers involved. While legal, 

pretextual stops can create issues under Department of 

Justice profiling guidelines. (See below). 
446

18.4.6 Arrests

The third type of “citizen-police” encounter is an arrest based 

on probable cause. See the sections discussing Arrests and 

Arrest Warrants in this chapter.

18.5 The Use of Race in Law Enforcement 

The use of race as a factor in the performance of law 

enforcement duties raises numerous constitutional concerns. 

In light of these concerns, in June of 2003 the Department of 

Justice (DOJ) published a document entitled “Guidance 

Regarding the Use of Race by Federal Law Enforcement 

Agencies.” On June 1, 2004, the Department of Homeland 

Security (DHS) explicitly adopted the DOJ policy on racial 

profiling.

In December 2014, the DOJ published a document entitled 

“Guidance for Federal Law Enforcement Agencies Regarding 

the Use of Race, Ethnicity, Gender, National Origin, Religion, 

Sexual Orientation or Gender Identity.” This document can be 

found in the Legal Training Reference Book. The 2014 

Guidance built upon and expanded the framework of the 2003 

Guidance, and it reaffirmed the federal government’s deep 

commitment to ensure that its law enforcement agencies 

conduct their activities in an unbiased manner.

The 2014 Guidance applies to federal law enforcement officers 

performing federal law enforcement activities, including those 

related to national security and intelligence. It defines not only 

the circumstances in which federal law enforcement officers 

may take into account a person’s race and ethnicity, as the 

2003 Guidance did, but also when they may take into account 

gender, national origin, religion, sexual orientation, or gender 

identity. The 2014 Guidance also applies to state and local law 

enforcement officers while participating in federal law 

enforcement task forces.
447

18.5.1 The Constitutional Framework 

The Constitution protects individuals against the invidious 

use of irrelevant individual characteristics. See Whren v. 

United States. Such characteristics should never be the sole 

basis for a law enforcement action. The 2014 Guidance 

established policy requirements beyond the legal 

constitutional minimum that shall apply to the use of race, 

ethnicity, gender, national origin, religion, sexual orientation, 

and gender identity by federal law enforcement officers. 

As used in the Guidance, “national origin” refers to an 

individual’s, or his or her ancestors’, country of birth or origin, 

or an individual’s possession of the physical, cultural, or 

linguistic characteristics commonly associated with a 

particular country. It does not refer to an individual’s 

“nationality” (i.e., country of citizenship or country of which 

the person is deemed a national), which may be relevant to the 

administration and enforcement of certain statutes, 

regulations, and executive orders. 

The 2014 Guidance applies to such officers at all times, 

including when they are operating in partnership with nonfederal law enforcement agencies. 

18.5.2 Guidance for Federal Law Enforcement Officers 

The following are direct excerpts from the 2014 Guidance. 

Specific examples concerning the use of the listed 

characteristics when making law enforcement decisions or in 

law enforcement activities can be found in the 2014 Guidance 

which is also published in the Legal Training Reference Book. 
448

a. Routine or Spontaneous Activities in Domestic 

Law Enforcement

In making routine or spontaneous law 

enforcement decisions, such as ordinary traffic 

stops, Federal law enforcement officers may not 

use race, ethnicity, gender, national origin, 

religion, sexual orientation, or gender identity to 

any degree, except that officers may rely on the 

listed characteristics in a specific suspect 

description. This prohibition applies even where 

the use of a listed characteristic might otherwise 

be lawful.

b. All Activities Other Than Routine or Spontaneous 

Law Enforcement Activities

In conducting all activities other than routine or 

spontaneous law enforcement activities, Federal 

law enforcement officers may consider race, 

ethnicity, gender, national origin, religion, sexual 

orientation, or gender identity only to the extent 

that there is trustworthy information, relevant to 

the locality or time frame, that links persons 

possessing a particular listed characteristic to an 

identified criminal incident, scheme, or 

organization, a threat to national or homeland 

security, a violation of Federal immigration law, 

or an authorized intelligence activity. In order to 

rely on a listed characteristic, law enforcement 

officers must also reasonably believe that the law 

enforcement, security, or intelligence activity to be 

undertaken is merited under the totality of the 

circumstances, such as any temporal exigency and 

the nature of any potential harm to be averted. 

This standard applies even where the use of a 

listed characteristic might otherwise be lawful.
449

This Guidance does not prohibit the 

accommodation of religious beliefs and practices 

consistent with the U.S. Constitution and federal 

law. The Guidance also does not prohibit officials 

from considering gender when “the gender 

classification is not invidious, but rather 

realistically reflects the fact that the sexes are not 

similarly situated.” Rostker v. Goldberg, 453 U.S. 

57, 79 (1981).

As noted above, there are circumstances in which 

law enforcement officers engaged in activities 

relating to particular identified criminal incidents, 

schemes, organizations, threats to national or 

homeland security, violations of Federal 

immigration law, or authorized intelligence 

activities may consider personal identifying 

characteristics of potential suspects, including 

race, ethnicity, gender, national origin, religion, 

sexual orientation, or gender identity. Common 

sense dictates that when a victim describes the 

assailant as possessing a certain characteristic, 

law enforcement officers may properly limit their 

search for suspects to persons possessing that 

characteristic. Similarly, in conducting activities 

directed at a specific criminal organization or 

terrorist group whose membership has been 

identified as overwhelmingly possessing a listed 

characteristic, law enforcement should not be 

expected to disregard such facts in taking 

investigative or preventive steps aimed at the 

organization’s activities.

Reliance upon generalized stereotypes is 

absolutely forbidden. In order for law enforcement 
450

officers to rely on information about a listed 

characteristic, the following must be true:

• The information must be relevant to the 

locality or time frame of the criminal activity, 

threat to national or homeland security, violation 

of Federal immigration law, or authorized 

intelligence activity;

• The information must be trustworthy; and

• The information concerning identifying 

listed characteristics must be tied to the particular 

criminal incident, a particular criminal scheme, or 

a particular criminal organization, a threat to 

national or homeland security, a violation of 

Federal immigration law, or an authorized 

intelligence activity.

This [prohibition against the use of generalized 

stereotypes] extends to the use of pretexts as an 

excuse to target minorities. Officers may not use 

such pretexts.

This concern arises most frequently when 

aggressive law enforcement efforts are focused on 

“high crime areas.” The issue is ultimately one of 

motivation and evidence; certain seemingly 

characteristic‐based efforts, if properly supported 

by reliable, empirical data, are in fact 

[race‐]neutral.

1. Relevance to the locality or time frame

Any information that law enforcement officers rely 

upon concerning a listed characteristic possessed 

by persons who may be linked to specific criminal 
451

activities, a threat to national or homeland 

security, a violation of Federal immigration law, 

or an authorized intelligence activity must be 

locally or temporally relevant.

2. The information must be trustworthy

Where the information relied upon by law 

enforcement officers linking a person possessing a 

listed characteristic to potential criminal activity, 

a threat to national or homeland security, a 

violation of Federal immigration law, or an 

authorized intelligence activity is unreliable or too 

generalized and unspecific, reliance on that 

characteristic is prohibited....In determining 

whether information is trustworthy, an officer 

should consider the totality of the circumstances, 

such as the reliability of the source, the specificity 

of the information, and the context in which it is 

being used.

These standards contemplate the appropriate use 

of both “suspect-specific” and “incident-specific” 

information. As noted above, where a crime has 

occurred and law enforcement officers have 

eyewitness accounts including the race, ethnicity, 

gender, national origin, religion, sexual 

orientation, or gender identity of the perpetrator, 

that information may be used. Law enforcement 

officers may also use reliable, locally or temporally 

relevant information linking persons possessing a 

listed characteristic to a particular incident, 

unlawful scheme, or ongoing criminal enterprise, 

a threat to national or homeland security, a 

violation of Federal immigration law, or an 

authorized intelligence activity—even absent a 

description of any particular individual suspect. In 
452

certain cases, the circumstances surrounding an 

incident, ongoing criminal activity, threat to 

national or homeland security, or violation of 

Federal immigration law will point strongly to a 

perpetrator possessing a specific listed 

characteristic, even though law enforcement 

officers lack an eyewitness account.

In addition, law enforcement officers may use a 

listed characteristic in connection with source 

recruitment, where such characteristic bears on 

the potential source’s placement and access to 

information relevant to an identified criminal 

incident, scheme, or organization, a threat to 

national or homeland security, a violation of 

Federal immigration law, or an authorized 

intelligence activity.

Finally, when a law enforcement officer relies on a 

listed characteristic in undertaking an action, that 

officer must have a reasonable belief that the 

action is merited under the totality of the 

circumstances. This standard ensures that, under 

the circumstances, the officer is acting in good 

faith when he or she relies in part on a listed 

characteristic to take action.

c. National Security and Intelligence Activities

The Guidance goes on to discuss issues surrounding national 

security.

Since the terrorist attacks on September 11, 2001, 

Federal law enforcement agencies have used every 

legitimate tool to prevent future attacks and deter 

those who would cause devastating harm to our 

Nation and its people through the use of biological 
453

or chemical weapons, other weapons of mass 

destruction, suicide hijackings, or any other 

means. “It is ‘obvious and unarguable’ that no 

governmental interest is more compelling than the 

security of the Nation.” Haig v. Agee, 453 U.S. 280, 

307 (1981) (quoting Aptheker v. Secretary of State, 

378 U.S. 500,509 (1964)).

The years since September 11 have also 

demonstrated that Federal law enforcement 

officers can achieve this critical goal without 

compromising our cherished value of equal justice 

under the law. Every day, Federal law 

enforcement officers work to keep our Nation safe, 

and they do so without invidious profiling. The 

standard embodied in this Guidance thus applies 

to Federal law enforcement agencies’ national and 

homeland security operations, which will continue 

to focus on protecting the public while upholding 

our values. 

National security, homeland security, and 

intelligence activities often are national in scope 

and focused on prevention of attacks by both 

known and unknown actors, not just prosecution. 

For example, terrorist organizations might aim to 

engage in acts of catastrophic violence in any part 

of the country (indeed, in multiple places 

simultaneously, if possible). These facts do not 

change the applicability of the Guidance, however. 

In order to undertake an action based on a listed 

characteristic, a law enforcement officer must 

have trustworthy information, relevant to the 

locality or time frame, linking persons possessing 

that characteristic to a threat to national security, 

homeland security, or intelligence activity, and 
454

the actions to be taken must be reasonable under 

the totality of the circumstances.

18.6 Probable Cause (PC) 

The Fourth Amendment provides that “no Warrant shall issue 

but upon probable cause ....” In cases in which the Fourth 

Amendment requires a search warrant, courts will use 

“probable cause” as the standard to decide if the search meets 

the constitutional requirement of reasonableness. Officers 

may perform some searches lawfully without a warrant; 

however, many of these warrantless searches require the 

officer to establish probable cause. Probable cause is also 

required to obtain an arrest warrant or to arrest someone 

without a warrant. The facts necessary to establish probable 

cause to obtain a warrant are the same as those required to 

proceed without a warrant in those cases where probable cause 

is required.

18.6.1 Defining Probable Cause

It is impossible to articulate the precise meaning of “probable 

cause.” Probable cause is a fluid concept - turning on the 

assessment of probabilities in particular factual contexts --

“not readily, or even usefully, reduced to a neat set of legal 

rules.” Nonetheless, the courts have established some basic 

definitions for probable cause to “arrest” or “search.” Probable 

cause to “search” exists where the known facts and 

circumstances are sufficient to warrant a man of reasonable 

prudence in the belief that contraband or evidence of a crime 

will be found in the place to be searched. Probable cause to 

“arrest” exists when the known facts and circumstances are 

sufficient to warrant a prudent person in believing that the 

suspect had committed or was committing an offense. The 

term “reasonable belief” is often used to help define probable 

cause.
455

18.6.2 The Test for Probable Cause

Courts use a “totality of the circumstances” test to determine 

whether probable cause exists. This means the courts consider 

all facts known to the officer. The focus in determining 

probable cause is not on the certainty that a crime was 

committed, but on the likelihood of it. The court will affirm an 

officer’s determination of probable cause if the officer can make 

a reasonable argument, based in fact, that the suspect 

committed a specific crime, or that evidence will be found in 

the place to be searched.

18.6.3 Establishing Probable Cause

An officer can establish probable cause in a number of ways. 

First, an officer can establish probable cause through direct 

observations (e.g., an officer smells the odor of marijuana 

coming from a vehicle). An officer can also rely on facts 

establishing probable cause that he or she receives in a report 

from another law enforcement officer. Similarly, an officer can 

establish probable cause from the “collective knowledge” of 

many law enforcement officers, each of whom has some fact 

available that, when taken in sum, establishes probable cause. 

An officer can rely on his or her training and experience in 

making a probable cause decision so long as there are 

sufficient facts to support it. Officers can also use non-human 

sources, such as a trained, drug-sniffing dog, to establish 

probable cause. Information provided solely by victims and/or 

witnesses can be sufficient to establish probable cause, given 

a proper basis of knowledge, when there is no evidence 

indicating that either the information or the victim/witness is 

not credible. An officer can establish probable cause from 

information that a confidential informant provides. When a 

confidential informant or anonymous source is the source of 

the information, however, the officer must consider and 

address certain issues relating to the credibility of the source 

and the accuracy of the information the source provides.
456

18.6.4 Using Confidential Informants to Establish 

Probable Cause 

The use of confidential informants in criminal investigations 

is fairly routine. However, the use of this particular 

investigative tool can raise concerns regarding the informant’s 

truthfulness and reliability. In Aguilar v. Texas, 378 U.S. 108 

(1964), the Supreme Court outlined a two-prong test for 

determining whether information provided by a confidential 

informant establishes probable cause. The two prongs of the 

“Aguilar Test” are: (1) the credibility of the informant, and (2) 

the informant’s basis of knowledge. 

a. Credibility of the Informant 

When the government uses a confidential informant to 

establish probable cause, it must establish that the informant 

is credible (worthy of belief). The government can establish the 

credibility of a confidential informant in a variety of ways. 

• Proven Track Record: The informant has a track record 

of supplying reliable information to the government in 

the past. 

• Statements against Interest: When a confidential 

informant makes statements that are against his penal 

interest, (it gets him in trouble, too) the information is 

more likely to be reliable. People do not lightly admit a 

crime and place critical evidence in the hands of the 

police in the form of their own admissions. Admissions 

of crime carry their own indicia of credibility - sufficient 

at least to support a finding of probable cause. 

• Corroboration: Independent corroboration of some 

information provided by a confidential informant 

increases the likelihood that other information the 
457

informant provides is accurate.

• First-Hand Information: The personal observations of a 

confidential informant are more likely to be credible.

• Face-to-Face Meetings with the Informant: A face-toface encounter allows the officer to make a personal 

assessment of the informant’s demeanor and credibility.

• Consistency between Independent Informants: 

Credibility increases when two or more separate, 

unrelated informants provide consistent information.

• The Degree of Detail Provided: The greater the detail, 

the more likely it is that the information is accurate.

b. Basis of Knowledge

In addition to establishing the confidential informant’s 

credibility, an officer must also establish that the informant 

has a sufficient basis of knowledge. The “basis of knowledge” 

prong requires the government to provide sufficient 

information to show how the informant became aware of the 

information he or she is providing. The government must 

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 (e.g., the fact that 

an informant saw stolen property in the suspect’s car six 

months ago would not support a determination that the 

property was still in the car.)
458

c. The Effect of Gates on Aguilar 

In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court 

rejected the two-part Aguilar test (outlined above) as hypertechnical 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. 

18.7 The Exclusionary Rule 

18.7.1 The Rule 

The Fourth Amendment does not, by its own terms, require 

that evidence obtained in violation of its requirements be 

suppressed. Instead, the Supreme Court developed the 

“exclusionary rule.” The rule essentially states that evidence 

obtained as a result of an unlawful search and/or seizure is 

inadmissible in criminal trials. This is true even if the evidence 

that officers seized was not a direct result of the Fourth 

Amendment violation. Evidence that a law enforcement 

indirectly derives from information the officer learned illegally 

is also inadmissible. This is called the “fruit of the poisonous 

tree” doctrine. For example, although searching arrestees 

incident to their arrest is generally permitted, evidence found 

in a search incident to an arrest which was not supported by 

probable cause would be inadmissible. Stolen property would 

be inadmissible if it officers retrieved it by following a map 

they found during an illegal search of a suspect’s home. The 

purpose of the exclusionary rule is to deter police misconduct 

by creating negative consequences for disregarding the Fourth 

Amendment requirements. However, the exclusionary rule 
459

does not prohibit the introduction of illegally seized evidence 

in every situation.

Courts have developed a number of exceptions to the general 

rule.

18.7.2 The Exceptions

a. No Standing to Object

Fourth Amendment rights are personal. In order to claim the 

protection of the Fourth Amendment, a defendant must 

demonstrate that he personally has an expectation of privacy 

in the place searched, and that his expectation is reasonable. 

Unless the government has violated a defendant’s Fourth 

Amendment rights, the defendant will not benefit from the 

exclusionary rule’s protections because he has no standing to 

object. For example, a car thief would have no standing to 

object to the admission of the tool he used to break into the car 

he stole after officers found it by searching the stolen car. Nor 

would a drug dealer have standing to object to the admission 

of drugs he duped an unsuspecting neighbor into storing in the 

neighbor’s house, even if officers found the drugs during a 

warrantless, nonconsensual search. Nor would a passenger in 

a vehicle have standing to object to the admission of a stolen 

wallet he concealed under a car seat if an officer conducted a 

warrantless, nonconsensual search of the car after the driver 

was pulled over for a speeding violation.

b. Impeachment

When a defendant takes the witness stand and testifies falsely, 

the government may cross-examine the defendant and 

impeach him with evidence that the government obtained in 

violation of the Fourth Amendment. Under the impeachment 

exception, the government may use illegally obtained evidence 

to impeach (1) a defendant’s testimony on direct examination, 
460

(2) or a defendant’s statements in response to proper crossexamination. 

c. Good Faith 

In United States v. Leon, 468 U.S. 897 (1984), the Supreme 

Court established a “good faith” exception to the exclusionary 

rule. Evidence seized by the government in “good faith” 

reliance on a warrant issued by a neutral and detached judge 

based upon what the government reasonably believes to be 

probable cause will be admissible even if a court later 

concludes that no probable cause existed. 

The three underlying reasons for the adoption of a “good faith” 

exception were: 

• The exclusionary rule’s purpose is to deter law 

enforcement misconduct rather than judicial errors; 

• There is no evidence that judges tend to ignore the 

Fourth Amendment, or that they have done so to such 

an extent that suppression of evidence is necessary; and

• Application of the exclusionary rule will not have a 

significant deterrent effect on magistrates or judges. 

The “good faith” exception will not apply when: 

• The government misleads the issuing judge by including 

information in the affidavit that the government knew 

was false or as to which the affiant had a reckless 

disregard for the truth; 

• The judge issuing the warrant has abandoned the 

“neutral and detached” role; 

• The warrant is based on an affidavit so lacking in indicia 
461

of probable cause as to render official belief in its 

existence entirely unreasonable; or

• The warrant is so “facially deficient” that no officer 

would reasonably assume the warrant is valid. (e.g., the 

warrant fails to particularly describe the place to be 

searched or things to be seized.)

d. Inevitable Discovery

The court should admit evidence if the prosecution can 

establish by a preponderance of the evidence that it ultimately 

or inevitably would have been discovered by lawful means. 

This is the “inevitable discovery” exception. The federal 

circuits are split on whether the “inevitable discovery” 

exception requires that law enforcement officers be actively 

pursuing an alternative investigation at the time the 

constitutional violation occurred.

All Circuits recognize the exception when two investigations 

are occurring at the same time. The First, Sixth, Ninth, and 

Tenth Circuits have held that the “inevitable discovery” 

exception applies whenever an independent investigation 

inevitably would have led to discovery of the evidence, whether 

or not the investigation was ongoing at the time of the illegal 

police conduct.

e. Miscellaneous Exceptions

In addition to the exceptions to the exclusionary rule outlined 

above, there are miscellaneous exceptions that may have 

applicability in a given case. The exclusionary rule does not 

apply to deportation proceedings, grand jury proceedings, 

sentencing proceedings, or civil tax proceedings.
462

18.8 The Plain View Seizure Doctrine 

The plain view seizure doctrine allows officers to seize 

evidence or contraband they discover while in a public place or 

lawfully inside an REP-protected area. There are three 

requirements the government must meet for a permissible 

plain view seizure of evidence. First, the officer must lawfully 

be in a position to observe the item; second, the incriminating 

nature of the item must be immediately apparent; and third, 

the officer must have a lawful right of access to the object itself.

18.8.1 Lawful Position of Observation

The first requirement of any plain view seizure is that the 

officer must have a lawful reason to be in the location from 

which he or she observed the item. A lawful reason to be in a 

dwelling would be a warrant, consent, or an exigent 

circumstance. If the officer conducted a lawful protective 

sweep (See section 17.12) while serving an arrest warrant and 

found a sawed-off shotgun in a bedroom closet immediately 

adjacent to the place of arrest, the officer could seize the 

shotgun under the plain view doctrine. If the officer exceeded 

the lawful scope of a protective sweep by opening the medicine 

cabinet, however, any evidence or contraband observed inside 

the medicine cabinet would fall outside the plain view doctrine.

18.8.2 The Incriminating Nature of the Item Must Be 

Immediately Apparent

Second, not only must the officer see the item from a place the 

officer has a legal right to be, but its incriminating character 

must also be immediately apparent. This requires the officer 

to have probable cause to believe that the object is contraband 

or evidence of a crime. If the officer must conduct some further 

search of the object before he or she can establish probable 

cause to believe that it is contraband or evidence of a crime, 

then its incriminating character is not immediately apparent 
463

and the plain view doctrine cannot justify its seizure. The 

standard is not high, and a plain view seizure is presumptively 

reasonable, provided there is probable cause to associate the 

property with criminal activity.

In determining whether an item’s incriminating nature is 

immediately apparent, courts will examine factors such as

• The nexus, or connection, between the seized object and 

the items particularized in a search warrant;

• Whether the intrinsic nature or appearance of the seized 

object gives probable cause to associate it with criminal 

activity; and

• Whether probable cause is the direct result of the 

executing officer’s instantaneous sensory perceptions.

18.8.3 Lawful Right of Access

Finally, even if the officer can see the object from a place where 

he or she is lawfully present, the officer may not seize it unless 

he or she also has a lawful right of access to the object itself. 

An officer’s personal observations may establish that criminal 

evidence is inside premises. However, even when the evidence 

is contraband, the basic rule is that the government may not 

enter and seize it without a warrant, consent, or exigent 

circumstances.

For example, an officer may stand on the public sidewalk and 

see a marijuana plant inside someone’s living room. Without 

additional facts, however, the officer may not yet enter the 

residence and seize the plant. The officer has no lawful right 

of access to the living room where the plant is located. If the 

resident were to grant the officer consent to enter, however, or 

if the resident saw the officer through the window and began 

destroying the plant, the officer could lawfully enter the house 
464

and seize the marijuana. The plain view doctrine is not a tool 

that allows officers to search for evidence, but only to seize it 

if it meets the rule’s criteria.

18.9 Arrest Warrants 

There are several ways to obtain an arrest warrant within the 

federal system. A federal judge can issue an arrest warrant on 

a criminal complaint. The clerk of court can issue an arrest 

warrant following a grand jury’s return of an indictment or 

following the U.S. Attorney’s filing of an Information. Federal 

Rules of Criminal Procedure (F.R.Cr.P.) 4 and 9 govern the 

form and issuance of arrest warrants.

18.9.1 Arrest Warrant upon Complaint

F.R.Cr.P. 4 addresses the issuance of federal arrest warrants 

based upon a complaint. Subsection (a) of the rule provides 

that “if the complaint or one or more affidavits filed with the 

complaint establish probable cause to believe that an offense 

has been committed and that the defendant committed it, the 

judge must issue an arrest warrant to an officer authorized to 

execute it.” A “complaint” is defined by F.R.Cr.P. 3 as “a 

written statement of the essential facts constituting the 

offense charged. It must be made under oath before a 

magistrate judge or, if none is reasonably available, before a 

state or local judicial officer.”

18.9.2 Arrest Warrant Upon Indictment or Information

F.R.Cr.P. 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 
465

the defendant committed it.” An information is similar to a 

criminal complaint except that an Assistant U.S. Attorney 

(AUSA) prepares it. An indictment is the result of a grand jury 

decision that there is probable cause to believe that a crime 

was committed and the defendant committed it.

18.9.3 The Form of a Federal Arrest Warrant

A federal arrest warrant must contain the following:

• Signature of the Judge: The warrant must be “signed by 

the magistrate judge” or by whatever judge issues the 

warrant. For arrest warrants based upon an indictment 

or information, the warrant “must be signed by the 

clerk.”

• Name of the Defendant: “... the defendant’s name or, if 

it is unknown, a name or description by which the 

defendant can be identified with reasonable certainty.”

• The Offense Charged: The warrant must “describe the 

offense charged in the complaint.” For arrest warrants 

based upon an indictment or information, the warrant 

“must describe the offense charged in the indictment or 

information.”

• Command to Arrest: The warrant must “command that 

the defendant be arrested and brought without 

unnecessary delay before a magistrate judge or, if none 

is reasonably available, before a state or local judicial 

officer.”

18.9.4 Technical Aspects of Executing Arrest Warrants

F.R.Cr.P. 4(c) describes the manner in which arrest warrants 

based upon a complaint must be executed.
466

• Who Can Execute? “Only a marshal or other authorized 

officer may execute a warrant.” The arresting officer 

need not be the one who obtained the warrant.

• Territorial Limits: An arrest warrant “may be executed 

... within the jurisdiction of the United States or 

anywhere else a federal statute authorizes an arrest.”

• Time Limits: Unlike a search warrant, there is typically 

no timeframe in which an arrest warrant is required to 

be executed.

18.9.5 Manner of Execution

A warrant is executed upon the arrest of the defendant. “Upon 

arrest, an officer possessing the warrant must show it to the 

defendant.” There is no requirement, however, that the 

arresting officer have the warrant in his or her possession at 

the time of the arrest. “If the officer does not possess the 

warrant, the officer must inform the defendant of the 

warrant’s existence and of the offense charged and, at the 

defendant’s request, must show the warrant to the defendant 

as soon as possible.”

18.9.6 Return of the Arrest Warrant

Both F.R.Cr.P. 4 and F.R.Cr.P. 9 provide for a return of the 

arrest warrant. When an officer arrests someone on a warrant 

issued upon a complaint, indictment, or information, the 

officer must return the warrant to the judge who will conduct 

the defendant’s Initial Appearance. At the request of an 

attorney for the government, an unexecuted warrant must be 

brought back to and canceled by a magistrate judge or, if none 

is reasonably available, by a state or local judicial officer.
467

18.10 Arrests 

A warrant is not always required for an arrest to be lawful. 

However, when a law enforcement officer arrests an 

individual, both statutory and constitutional requirements 

must be satisfied. The three requirements for a lawful arrest 

are (1) probable cause, (2) arrest authority, and (3) a lawful 

right of access to the suspect.

18.10.1 Arrest Authority

In the federal system, the authority to make arrests varies 

from agency to agency. The scope of arrest authority is 

established by statute. Officers must know the extent of their 

authority granted by these statutes. For some, authority and 

jurisdiction are limited to certain geographical areas; for 

others, authority is limited to certain subject matter. For 

example, a United States Park Police officer can enforce 

almost all federal laws, but only within specific physical 

boundaries. On the other hand, an Internal Revenue Service 

agent may enforce only internal revenue laws, but may do so 

anywhere within the jurisdiction of the United States. Officers 

may not make an arrest just because a federal crime has been 

committed, but may do so only if they have the statutory 

authority to arrest for that specific crime.

Authority to make arrests comes from three different sources.

a. Statutory Authority

Most federal law enforcement officers have statutory grants of 

authority provided to them by Congress. For example, Title 18 

U.S.C. § 3056 outlines the arrest authority for officers and 

agents of the United States Secret Service. Title 22 U.S.C. § 

2709 provides the arrest authority for special agents of the 

Department of State.
468

b. Peace Officer Status

Federal officers may, in certain states, make arrests for 

violations of state law. This is typically referred to as “peace 

officer” status. State law determines whether federal officers 

have such authority, but the officer’s agency policy may 

restrict state peace officer status.

c. Citizen’s Arrest Authority

Numerous states still have what is referred to as “citizen’s 

arrest” authority, which allows a citizen with probable cause 

to make an arrest for certain crimes. The requirements for and 

scope of “citizen’s arrest” authority varies from state to state. 

An officer’s reliance upon “citizen’s arrest” authority should be 

rare and most likely will not be in the “scope” of employment.

18.10.2 Arrests Based on Outstanding Arrest Warrants

On occasion, federal officers discover the existence of an arrest 

warrant for a person during the course of their regular duties. 

Officers typically learn of the existence of the warrant through 

an identity check run with the Treasury Enforcement 

Communications System (TECS) or National Crime 

Information Center (NCIC).

a. Outstanding Federal Arrest Warrant

Authority to arrest is limited to statutory authority. The officer 

should verify that the warrant is still valid, and that the 

person arrested is the individual specified on the warrant. If 

an officer encounters a person with an outstanding federal 

warrant for a crime outside the scope of the officer’s statutory 

arrest authority, he or she should detain the individual until 

an officer with the proper authority can make the arrest.
469

b. Outstanding State Arrest Warrant 

Unless authorized by statute, federal law enforcement officers 

may not arrest individuals on outstanding state warrants. 

Very few agencies have such statutory arrest authority. See 38 

U.S.C. § 902 Enforcement and Arrest Authority of Department 

[of Veteran Affairs] Police Officers for a rare exception to the 

general rule. However, a federal law enforcement officer might 

make such arrests with state peace officer authority, 

depending on the law of the state in which the arrest is made. 

If faced with this situation, the best practice is for the federal 

law enforcement officer to contact the state or local police 

department listed on the warrant to determine if that 

department wants the individual detained. If so, the federal 

law enforcement officer may detain the individual for a 

reasonable period until state or local police officers can make 

the arrest. 

The discovery of a person with a pending state arrest warrant 

may indicate a violation of federal law. For example, Title 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. 

18.10.3 Right of Access: Entering a Home to Arrest 

The “physical entry of the home is the chief evil against which 

the wording of the Fourth Amendment is directed.” Welsh v. 

Wisconsin, 466 U.S. 740 (1984). For that reason, entering a 

home to arrest a person without a warrant is typically a 

violation of the Fourth Amendment, regardless of whether the 

officer has probable cause to arrest the suspect. An officer who 

enters a person’s home to make an arrest, must have: (1) a 

warrant; (2) consent; or (3) an exigent circumstance. 

a. Entering the Suspect’s Home to Make an Arrest 
470

“[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, 445 U.S. 573 (1980). In essence, this means that the 

officer must have: (1) a reasonable belief that the suspect lives 

at the home, and (2) a reasonable belief that the suspect is 

currently present in the home. 

In determining whether a suspect is present in the home 

before executing the arrest warrant, courts look to the totality 

of the circumstances known to the officer at the time of the 

entry. In deciding this issue, courts typically consider several 

factors, including: 

• Any surveillance information indicating the suspect is in 

the home, although the actual viewing of the suspect is 

not required; 

• The presence of the suspect’s vehicle, which may 

indicate his presence; 

• The time of day (e.g., 8:30 a.m. on a Sunday morning); 

• Observation of lights or other electrical devices, such as 

televisions or stereos; 

• The circumstances of a suspect’s employment, which 

may indicate when he is likely to be at his home; 

• Information from third parties (e.g., confidential 

informants or neighbors) indicating the suspect is 

present in the home. 

b. Entering a Third-Party’s Home to Make an Arrest
471

An arrest warrant does not allow the government to enter a 

home where the target does not reside to make the arrest. To 

enter the third-party’s home to make an arrest the government 

must have: (1) a search warrant; (2) the consent of the thirdparty homeowner/occupier; or (3) an exigent circumstance. 

Steagald v. United States, 451 U.S. 204 (1981).

18.10.4 Warrantless Arrests 

The level of probable cause required to make a warrantless 

arrest is the same as that required to obtain an arrest warrant. 

Assuming it is supported by probable cause, the legality of a 

warrantless arrest depends on whether the crime is a felony or 

a misdemeanor, and whether the suspect is in a public or 

private area.

a. Felonies 

When an officer has probable cause to believe that a suspect 

located in a public place has committed a felony offense, he or 

she may make a warrantless arrest of that person. This 

presumes, of course, that the officer is authorized by statute or 

otherwise to do so. If the person for whom the officer has 

probable cause is located inside a residence, he or she must 

have consent or an exigent circumstance to enter the residence 

to make an arrest without a warrant. 

b. Misdemeanors 

If an officer has probable cause to believe that an individual 

has committed a misdemeanor offense in his or her presence, 

the officer may arrest the offender. An officer has probable 

cause to believe a misdemeanor is taking place “in his or her 

presence” when the facts and circumstances as observed by the 

officer through his or her senses are sufficient to warrant an 

officer of reasonable caution to believe that an offense is 

occurring. 
472

Neither the Constitution nor the Supreme Court mandates 

that a misdemeanor offense occur “in an officer’s presence” for 

an arrest to be authorized. However, the vast majority of 

statutes that provide federal law enforcement officers with 

arrest authority incorporate the “presence” requirement for 

warrantless misdemeanor arrests.

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. The exigent circumstance of “hot 

pursuit,” discussed later in this chapter, is only available when 

pursuing a suspect who the officer believes has committed a 

“serious crime.” While some misdemeanors may qualify, the 

hot pursuit exigency is most often limited to use in felony 

pursuits.

18.11 Title 18 U.S.C. § 3109 

Title 18 U.S.C. § 3109 is commonly referred to as the “knockand-announce statute.” It places specific requirements upon 

federal law enforcement officers when executing warrants in 

dwellings. The statute requires more than simply knocking 

and announcing. Although the Fourth Amendment does not 

specifically require such an action, the Supreme Court has 

held the knock-and-announce statute to be part of the Fourth 

Amendment’s reasonableness requirement. The statute 

requires that before the government executes a search or 

arrest warrant in a residence, it must first announce its 

authority and purpose.

18.11.1 The Statute

Titled “Breaking Doors or Windows for Entry or Exit,” the 

statute provides as follows:

The officer may break open any outer or inner door 

or window of a house, or any part of a house, or 
473

anything therein, to execute a search warrant, if, 

after notice of his authority and purpose, he is 

refused admittance or when necessary to liberate 

himself or a person aiding him in the execution of 

the warrant.

The plain language of the statute appears to limit its 

application to the execution of search warrants. However, case 

law has made the statute equally applicable to the execution 

of arrest warrants.

18.11.2 The Primary Purposes of the Statute

The requirement to knock-and-announce has three primary 

purposes: (1) to reduce the potential for violence to both the 

officers and the occupants of the house; (2) to prevent, or at 

least reduce, the needless destruction of private property; and 

(3) to recognize an individual’s right of privacy in his or her 

home.

18.11.3 A “Breaking” Under the Statute

Although the phrase “break open” implies some use of force, 

force is not the only manner in which the government can 

violate § 3109. Section 3109 essentially prohibits an 

unannounced intrusion into a dwelling. “Break open” includes:

• Breaking down a door;

• Forcing open a chain lock on a partially open door;

• Opening a locked door by use of a passkey; or

• Opening a closed but unlocked door.
474

18.11.4 Requirements Under the Statute

Under the knock-and-announce statute, officers must meet 

three requirements before they may lawfully use force to 

“break open” some part of a house when executing a search or 

arrest warrant.

a. The Government Must First “Knock”

Section 3109 contains no explicit “knock” requirement. It only 

requires the government to give notice of its “authority and 

purpose.” While the practice of physically knocking on the door 

is preferred by federal courts, it is only one method the 

government can use to give notice of its presence. Other 

methods include placing a phone call to the residence, or using 

a bullhorn, a police loudspeaker, or public address system.

b. Announcement of Authority and Purpose

In addition to providing notice, § 3109 requires that the 

government announce its authority and purpose for being 

there. No special words are necessary to satisfy this 

requirement. Announcing the title of the agency, such as 

“Office of the Inspector General,” is overly complex and 

difficult for people to understand. Instead, simply announce, 

“Police with an arrest (or search) warrant, open the door!” 

Officers meet the requirements of the knock and announce 

rule if they alert the occupants of the residence that the 

government is outside and seeks entry to execute a warrant.

c. The Officers Must Be Refused or Denied 

Admittance

The final requirement under § 3109 is that the officers may not 

break in unless they are refused or denied admittance. They 

can then use force to “break” into the residence and execute 

the warrant. Sometimes an occupant explicitly refuses or 
475

denies the officers admittance. Frequently, however, the 

officers infer refusal or denial of admittance from the 

circumstances. Some of the most common circumstances 

indicating a refusal of admittance are:

• Silence. Officers can infer a refusal to comply with an 

order to “open up” from silence following the order. 

However, officers can infer a refusal from silence only 

after waiting a reasonable time. Unfortunately, neither 

the Supreme Court nor any federal court has established 

a definitive timeframe that an officer must wait before 

entering a residence after knocking and announcing. 

Instead, courts consider what constitutes a “reasonable” 

amount of time on a case-by-case basis. The courts will 

consider the facts known to the officers in judging 

reasonable waiting times for purposes of § 3109. Factors 

that courts have considered in making this 

determination include: (1) the time of day; (2) the size 

and physical layout of the residence; (3) the nature of the 

crime at which the warrant is directed; (4) any evidence 

indicating guilt of the suspect; (5) the nature of the 

evidence sought and the time it would take to begin 

destroying evidence once knock-and-announce is 

performed; and (6) any other observations supporting a 

forced entry, such as defensive measures taken by the 

residents of the premises.

• Sounds of flight by the occupants.

• Sights or sounds indicating the destruction of evidence.

• Verbal refusal. For example, the occupant yells, “Go 

away!”

• Gunfire from inside the residence.
476

18.11.5 Exigent Circumstances and § 3109

The Fourth Amendment does not require the government to 

comply with § 3109 in all instances prior to using force to enter 

a residence. Instead, the statute has an “exigent 

circumstances” exception, which allows officers to dispense 

with the knock-and-announce requirement in certain 

situations. To lawfully use force to enter a residence without 

complying with the knock-and-announce” requirements, 

officers must have a reasonable suspicion, under the particular 

circumstances, that knocking and announcing their presence 

would be dangerous or futile, or that it would inhibit the 

effective investigation of the crime by, for example, allowing 

the destruction of evidence. The primary exigent 

circumstances that allow officers to dispense with the 

requirements of § 3109 are:

• Danger to officers or third parties: Reasonable suspicion 

exists that knocking and announcing would result in 

danger to law enforcement officers or third parties.

• Destruction of evidence: Reasonable suspicion exists 

that knocking and announcing would result in the 

destruction of evidence.

• Useless gesture: Knocking and announcing would be a 

“useless gesture” because the suspect is already aware 

of a law enforcement presence.

• Hot pursuit: Officers are not required to pause at the 

front door of a residence to “knock and announce” their 

presence when they are in “hot pursuit” of a felony 

suspect.

• Ruses or decoys: In the detection of many types of crime, 

the government is entitled to use decoys to conceal the 

identity of its agents. For that reason, an entry obtained 
477

without force by ruse or deception is not a violation of 

section 3109. If an attempted entry by ruse fails, the 

knock-and-announce rule applies to a later forcible 

entry.

In a memorandum dated September 13, 2021, the Department 

of Justice issued policy changes applicable to its law 

enforcement components on “no knock” entries. Specifically, 

law enforcement agents of the Department of Justice are 

limited to using “no knock” entries to those circumstances in 

which the agent has reasonable grounds to believe at the time 

the warrant is sought that knocking and announcing the 

agent’s presence would create an imminent threat of physical 

violence to the agent and/or another person. Or, if an agent 

did not anticipate the need for a “no knock” entry at the time 

the warrant was sought, the agent may conduct a “no knock” 

entry only if exigent circumstances arise at the scene such that 

knocking and announcing the agent’s presence would create 

an imminent threat of physical violence to the agent and/or 

another person.

Therefore, in accordance with the Department of Justice 

memorandum, “no knock” entries solely to prevent the 

destruction or removal of evidence are no longer permitted by 

components within the Department of Justice.

However, it is likely U.S. Attorney’s Offices across the United 

States will not concur in the application of “no knock” warrants 

nor support “no knock” entries to prevent the destruction of 

evidence from any law enforcement agency, including those 

agencies outside the Department of Justice.

This is a policy change within the Department of Justice and 

Congress has not made any changes to 18 U.S.C. § 3109 and 

case law continues to support “no knock” entries to prevent the 

destruction of evidence. As a practical matter though, because 

the concurrence of the U.S. Attorney’s Office is required on all 
478

search warrant applications, all Federal Law Enforcement 

agents will need to comply with the Department of Justice 

memorandum on “no knock” entries. 

18.11.6 Violations of § 3109 and Suppression of Evidence 

The common law principle that law enforcement officers must 

announce their presence and provide residents an opportunity 

to open the door is an ancient one and a command of the Fourth 

Amendment. Hudson v. Michigan, 547 U.S. 1096 (2006). Not 

every Fourth Amendment violation, however, triggers the 

exclusionary rule. Violations of knock-and-announce, alone, 

will not result in the exclusion of evidence, 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 statute’s requirements for lawful entry. They are 

required to comply with § 3109, and remain susceptible to civil 

liability and administrative discipline for violations. 

18.11.7 No-Knock Warrants 

Under certain circumstances, officers may request a “noknock” warrant, which dispenses with the requirements of § 

3109 to knock and announce before entry. “The practice of 

allowing magistrates to issue no-knock warrants seems 

entirely reasonable when sufficient cause to do so can be 

demonstrated ahead of time.” Richards v. Wisconsin, 520 U.S. 

385 (1997). When the government anticipates exigent 

circumstances before searching, officers should ask for presearch judicial approval to enter without knocking. The 

issuance of a warrant with a no-knock provision potentially 

insulates the government against the subsequent finding that 

exigent circumstances did not exist. 
479

The facts that justify a no-knock warrant are the same as those 

needed to justify an officer’s on-site decision to dispense with 

the knock-and- announce requirement. The officer should have 

reason to believe that an exigency exists, that knocking will 

create an exigency, or that knocking would be futile. A judge’s 

decision to refuse authorization of a no-knock entry does not 

preclude officers, when executing a warrant, from concluding 

that it would be reasonable to enter without knocking and 

announcing if circumstances warrant it when they reach the 

scene.

When the government obtains a no-knock warrant, it does not 

have to reaffirm the circumstances at the scene. However, the 

government may not disregard reliable information clearly 

negating the existence of exigent circumstances when it 

receives such information before executing the warrant. Under 

such circumstances, the government must reevaluate its plan 

to enter without knocking and announcing.

18.12 Protective Sweeps 

18.12.1 What is a Protective Sweep?

A protective sweep is a quick and limited search of a premises 

incident to an arrest, which officers conduct to protect the 

safety of officers and others from persons who might pose a 

danger. It is narrowly confined to a cursory visual inspection 

of those places in which a person might be hiding.

18.12.2 Scope of a Protective Sweep

A protective sweep is not a full search of a dwelling. Officers 

may only “sweep” those spaces where an individual might be 

found. For example, a search inside a medicine cabinet is 

outside the scope of a permissible protective sweep because 

persons could not reasonably hide inside a medicine cabinet.
480

An officer who finds incriminating evidence during a lawful 

protective sweep may seize the evidence under the plain view 

doctrine. This discovery of evidence does not justify a 

subsequent warrantless search of the residence for additional 

evidence. Officers may use the incriminating evidence to 

establish probable cause to obtain a search warrant for the 

premises. 

18.12.3 Timing of the Protective Sweep 

The Supreme Court has ruled that a protective sweep may last 

“no longer than it takes to complete the arrest and depart the 

premises.” Maryland v. Buie, 494 U.S. 325 (1990). Although 

there is no bright- line rule on how long protective sweeps may 

last, they are generally measured in minutes. The longer 

officers take to complete a protective sweep, the more likely a 

court will find the sweep excessive. For example, a court 

upheld a protective sweep when the special response team 

opened doors only to areas large enough to harbor a person; 

there was no evidence that the officers opened drawers or that 

the sweep of the house was over extensive; and the sweep was 

short, lasting only about a minute. A court held a two-hour 

protective sweep unlawful because it appeared to be a fishing 

expedition for evidence and because it greatly exceeded the 

permissible scope. Courts have held unlawful protective 

sweeps lasting as little as thirty minutes. 

18.12.4 Two Kinds of Protective Sweeps 

The Supreme Court has identified two types of protective 

sweeps. The first, which requires no articulable suspicion, 

involves looking in closets and other people-sized places 

immediately adjoining the place of arrest. The second, which 

requires reasonable suspicion, allows a greater intrusion into 

the premises. 
481

a. Automatic Protective Sweeps 

Officers armed with an arrest warrant (or a search warrant for 

a person to be arrested) may enter the premises and search for 

the arrestee in any area that could conceal a person. Once the 

arrestee is located and the arrest is made, “as a precautionary 

matter and without probable cause or reasonable suspicion, 

[officers may] look in closets and other spaces immediately 

adjoining the place of arrest from which an attack could be 

immediately launched.” Buie. Although the limited search is 

for people, officers may seize any evidence or contraband they 

find found in plain view. 

b. Extended Protective Sweeps 

In Buie, the Supreme Court held that if officers wish to sweep 

beyond the area immediately adjacent to the place of arrest, 

“there must be articulable facts which, taken together with the 

rational inferences from those facts, would warrant a 

reasonably prudent officer in believing that the area to be 

swept harbors an individual posing a danger to those on the 

arrest scene.” 

Facts establishing a reasonable suspicion that another, 

dangerous person is present at the scene include an occupant’s 

demeanor, suggestive utterances or actions by an occupant, 

noises indicating that additional persons are present at the 

residence, and cars in the driveway registered to criminal 

associates of the suspect. An agency policy mandating an 

automatic sweep of the entire premises during every arrest – 

regardless of the circumstances – is invalid under the Fourth 

Amendment. Such a policy cannot justify an extended sweep 

where no facts support reasonable suspicion that additional 

persons are present. 
482

18.12.5 When the Arrest Occurs Outside the Home 

There is no bright-line rule that prohibits officers from 

performing protective sweeps of homes when an arrest occurs 

outside of the residence. Instead, as with an extended 

“protective sweep,” the officers must have reasonable suspicion 

to believe that a third party, who poses a danger to officers, is 

inside the home. If facts supporting such reasonable suspicion 

exist, it does not matter whether the arrest occurred inside or 

outside the home. 

18.13 Searches Incident to Arrest 

Conducting a search incident to a lawful arrest is a reasonable 

search under the Fourth Amendment and a valid exception to 

the warrant requirement. 

18.13.1 Rationales for the Rule 

In Chimel v. California, 395 U.S. 752 (1969), the Supreme 

Court outlined three distinct reasons for permitting searches 

incident to arrest: (1) to discover weapons; (2) to prevent the 

destruction or concealment of evidence; and (3) to discover any 

means of escape. 

Officers do not have to believe that the arrestee possesses 

evidence, weapons, or a means of escape on his person before 

a search incident to that arrest is justified. A suspect’s lawful 

arrest automatically enables the officers to conduct a search of 

that person. 

18.13.2 Requirements for a Search Incident to Arrest 

There are three requirements for a search incident to arrest. 

First, there must be a lawful custodial arrest. This requires 

both probable cause that the arrestee has committed a crime 
483

and an actual arrest. An officer may not conduct a search 

incident to arrest if an actual custodial arrest does not take 

place. For example, officers may not conduct a search incident 

to arrest in a Terry-type situation. A search incident to arrest 

is more intrusive than a frisk for weapons. An officer may not 

conduct a search incident to arrest when an individual receives 

only a citation for an offense, such as a traffic violation, even 

if the officer could have taken the individual into custody. 

Knowles v. Iowa, 525 U.S. 113 (1998).

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, 453 U.S. 454 (1981). The 

exact meaning of this phrase is open to interpretation, but it 

generally means that an officer must conduct a search incident 

to arrest at about the same time as the arrest. A search too 

remote in time or place from the arrest cannot be justified as 

incident to the arrest. “Substantially contemporaneous” is 

determined in light of the Fourth Amendment’s general 

reasonableness requirement, taking into consideration all of 

the circumstances surrounding the search. While a search 

conducted 10 minutes after an arrest might be valid, a search 

30 to 45 minutes after the arrest might not. 

The contemporaneous requirement does not have a significant 

effect on the ability to search the suspect’s body (officers often 

search suspects at the scene, and again later as part of jail 

security measures). It becomes a critical issue for searching 

the area surrounding the suspect or searching items that may 

have been within the suspect’s control, such as bags or 

containers. A search of these must take place at the time of 

arrest in order to be valid. 

The third requirement for a lawful search incident to arrest is 

that the area the officer searches must be currently accessible, 

at least in some measure, by the arrestee. If officers have 

removed the arrestee from the area, there is no longer a 
484

justification for finding weapons or destructible evidence and 

officers should not search. Arizona v. Gant, 556 U.S. 332 (2009) 

(“If there is no possibility that an arrestee could reach into the 

area that law enforcement officers seek to search, both 

justifications for the search-incident-to-arrest exception are 

absent and the rule does not apply.”) Some courts may even 

consider a well- secured arrestee (handcuffed, with multiple 

officers present) to lack access to the surrounding area. 

In limited circumstances, the search may take place before the 

actual arrest occurs. “Where the formal arrest follow[s] quickly 

on the heels of the ... search of [the defendant’s] person,” it is 

not “particularly important that the search preceded the arrest 

rather than vice versa.” Rawlings v. Kentucky, 448 U.S. 98 

(1980). In such cases, officers may not use any of the evidence 

found during the pre-arrest search as probable cause for the 

arrest. 

18.13.3 Scope of a Search Incident to Arrest 

The permissible scope of a search incident to arrest varies 

depending on the context of the arrest. 

a. The Person of the Arrestee 

When an officer makes a custodial arrest of an individual, the 

officer is entitled to search the arrestee’s person. In the case of 

a lawful, custodial arrest, a full search of the person is 

reasonable under the Fourth Amendment and is a valid 

exception to the warrant requirement. Officers may search for 

weapons, evidence, and any means of escape. Officers may 

seize any evidence found on the person of the arrestee even if 

the evidence is unrelated to the crime of arrest. 

To be reasonable as part of a search incident to arrest, strip 

and visual body cavity searches must be justified by at least a 

reasonable suspicion that the arrestee is concealing 
485

contraband or weapons. The manner of the search, including 

the place in which the officer conducts it, must also be 

reasonable. Generally, it is unreasonable to conduct a strip 

search in an area exposed to the general view of persons known 

to be in the vicinity, whether or not anyone actually viewed the 

search. However, compelling circumstances, such as those that 

pose potentially serious risks to the arresting officer or others 

in the vicinity, would make an otherwise unreasonable strip or 

visual body cavity search reasonable.

Federal law defines a strip search as the exposure of a person’s 

naked body for the purpose of a visual or physical examination. 

Federal courts have held the following conduct by law 

enforcement officers was a strip search:

• Pulling down a suspect’s pants and underwear in public; 

and

• Moving a suspect’s clothing to facilitate the visual 

inspection inside the suspect’s underwear.

Notably, some federal courts have turned to state law to 

determine what constitutes a strip search, as many state 

statutes specifically contain language such as:

“‘Strip Search’ means having an arrested person remove or 

arrange some or all of his or her clothing so as to permit a 

visual inspection of the genitals, buttocks, anus, female 

breasts or undergarments of such person.”

Based on such state-law definitions, one can argue that simply 

arranging an arrestee’s clothing to permit inspection of part of 

the underwear qualifies as a strip search.

b. The Area within the Arrestee’s “Immediate 

Control”
486

In addition to the person of the arrestee, the officer is also 

entitled to search any area within the suspect’s immediate 

control. This includes any containers within the arrestee’s 

immediate control at the time of the arrest, such as a wallet, 

purse, backpack, briefcase, or luggage. The phrase “immediate 

control” means the area from within which the arrestee might 

gain possession of a weapon or destructible evidence. 

However, in Riley v. California, 573 U.S. 373 (2014), the 

United States Supreme Court specifically held that warrants 

are generally required to search cell phones seized during a 

lawful arrest. The Court applied the Chimel factors cited above 

and found that: (1) once officers have seized the phone, the 

arrestee cannot use it as a weapon; and (2) officers can take 

reasonable measures to prevent the remote wiping of data by 

placing a cell phone in a Faraday container or powering off the 

phone and removing the battery. Although officers cannot 

search a cell phone incident to arrest, the Court also stated 

that traditional exigent circumstances could justify the 

warrantless search of a cell phone’s data after an arrest. 

Whether an area is within an arrestee’s immediate control is 

determined on a case-by-case basis, and should take into 

consideration a variety of factors, including: 

• The distance between the arrestee and the place to be 

searched; 

• Whether the arrestee was handcuffed or otherwise 

restrained; 

• Whether the officers were in a position to block the 

arrested person’s access to the area in question; 

• The ease with which the arrested person could access the 

area; and
487

• The number of law enforcement officers present at the 

scene. 

The reference point for the area within the arrestee’s 

immediate control is the location of the person at the time of 

the search. Generally, this should also be the location of the 

arrest, absent some extenuating circumstance. Once officers 

remove the suspect from that location, the right to conduct a 

search incident to arrest of that area is generally lost (but not 

the right to search the suspect’s body). 

This rule does not allow officers to move the arrestee from one 

place to another within the house to justify a search incident 

to arrest of a different area. The officers can move the arrestee 

from a room as needed for safety and control reasons, or 

perhaps to obtain clothing, but this does not justify a search of 

the new location. The officer may accompany the arrestee, of 

course, and seize evidence observed in plain view during the 

relocation. Should the arrestee need to obtain clothing items, 

or to sit down on a chair or other piece of furniture, the officer 

could check the item or area prior to allowing the subject 

access. Note that an arrest outside of a home will not justify a 

search incident to arrest inside the home. 

18.13.4 Vehicles and Search Incident to Arrest 

The rule that allows officers to search the area within the 

immediate control of an arrested suspect also applies to 

vehicles. Custodial arrest of an occupant of the vehicle is 

required before an officer may conduct a search incident to 

arrest of the vehicle. There is no search incident to citation. 

There is no requirement that the occupant arrested be the 

owner or driver of the vehicle. The term “occupant” could 

include someone located outside the vehicle at the time of the 

arrest, so long as the person arrested is a “recent occupant” of 

the vehicle. Thornton v. United States, 541 U.S. 615 (2004).
488

As with other searches incident to arrest, the purpose is to 

search for potential weapons and evidence that the arrestee 

could destroy. This includes the entire passenger compartment 

of the vehicle, along with containers in that part of the car. As 

stated above, however, when “there is no possibility that an 

arrestee could reach into the area that law enforcement 

officers seek to search ... the rule does not apply.” Arizona v. 

Gant. A “container” is any object capable of holding another 

object, and includes closed or open glove compartments, 

consoles, or other receptacles located anywhere within the 

passenger compartment, as well as luggage, boxes, bags, 

clothing, and the like. While this definition does not expressly 

address “locked” containers, several federal circuits have held 

that locked containers are within the scope of a lawful search 

incident to arrest. The inaccessible trunk of a vehicle, however, 

is not within the immediate control of an arrestee and officers 

cannot search it incident to arrest. 

The Supreme Court also created a second rule that applies 

only to vehicles, in that the Court allows a search incident to 

arrest even when the standard Chimel rule does not. As a 

result, there are two possible situations when officers can 

search the passenger compartment of a vehicle incident to 

arrest. 

The first situation exists when the arrestee is close to the 

vehicle and can readily access the passenger compartment. 

This will be rare in practice, as safety and good sense dictate 

controlling the arrestee early, often by securing him in 

handcuffs and taking him away from the car. Where 

circumstances dictate that the arrestee remains nearby, not 

fully secured, Officers can perform a search incident to arrest 

of the vehicle. For example, if just one officer is present, even 

a handcuffed arrestee could conceivably access the interior of 

the vehicle. When there are multiple officers present, or once 

officers secure the arrestee in the back of a patrol car, the 

officer may not search the vehicle incident to arrest. An officer 
489

should not detain an arrestee next to the vehicle for the sole 

purpose of justifying this type of search. 

If the arrestee is no longer in a position to access the vehicle, 

there is a second situation in which the officer can search a 

vehicle incident to arrest. This occurs when it is reasonable to 

believe the vehicle contains evidence of the crime of arrest. 

This only applies to the crime of arrest, not other crimes the 

arrestee may have committed. 

 

For example, if the arrest is for passing counterfeit currency, 

it is reasonable to believe the vehicle contains evidence of that 

crime (additional notes, etc.). If, however, the arrest was for 

driving on a suspended license, it would not be reasonable to 

believe additional evidence of the crime would be found in the 

car, so a search incident to arrest would not be justified. 

If neither of these rules applies, the officer may not search the 

vehicle incident to arrest. However, other exceptions to the 

Fourth Amendment warrant requirement might permit a 

search. For example, if there was a reasonable suspicion that 

another individual close enough to access the car was armed 

and dangerous, the officer could frisk the passenger 

compartment. If there is probable cause to believe the car 

contains evidence of a crime, the officer could search based on 

the Carroll doctrine. Finally, if the vehicle is lawfully 

impounded, officers may conduct an inventory if the standards 

for that type of search are met. 

18.14 Issuance of Federal Search Warrants 

The rules delineating who may issue federal search warrants 

are a mix of statutes and federal case law. 
490

18.14.1 Who May Request a Federal Search Warrant?

F.R.Cr.P. 41(d)(2)(A) provides that federal search warrants 

may be requested by (a) federal law enforcement officers, or (b) 

an attorney for the government.

F.R.Cr.P. 41 defines a “Federal law enforcement officer” as “a 

government agent (other than an attorney for the government) 

who is engaged in enforcing the criminal laws and is within 

any category of officers authorized by the Attorney General to 

request a search warrant.” Officers are required to obtain the 

concurrence of the United States Attorney’s Office before 

applying for a search warrant. Specifically, 28 C.F.R. § 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.”

F.R.Cr.P. 1(b)(1) defines an “attorney for the government” and 

includes Assistant United States Attorneys.

18.14.2 Who May Issue a Federal Search Warrant?

F.R.Cr.P. 1 and 41 authorize the following individuals to issue 

federal search warrants:

• United States Magistrate Judge (F.R.Cr.P. 41(b));

• United States District Court Judge (F.R.Cr.P. 1(c));

• United States Circuit Court of Appeals Judge (F.R.Cr.P. 

1(c));

• United State Supreme Court Justice (F.R.Cr.P. 1(c)); 

and

• State Court Judges who are of a court-of-record.
491

State judges were included in F.R.Cr.P. 41 because they are 

far more plentiful than the small corps of federal magistrate 

judges. State law determines whether a court is a court-ofrecord. The one essential feature of a court-of-record is that it 

must make and keep a permanent record of the court’s 

proceedings.

18.14.3 Jurisdictional Requirements

Various statutory provisions also outline jurisdictional limits 

on the issuance of federal search warrants. As a starting point, 

a federal judge, if “neutral and detached,” can issue a search 

warrant to search a person or property located within a district 

in which the judge is otherwise empowered to act. Thus, a 

United States Magistrate or District Judge assigned to the 

Southern District of Georgia can authorize a search of a home 

in the Southern District of Georgia, but not in the Northern 

District of Georgia. Sometimes, however, as outlined below, a 

federal judge can authorize a search conducted outside his or 

her district.

Within the District: Pursuant to F.R.Cr.P. 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 F.R.Cr.P. 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 F.R.Cr.P. 41(b)(3), “a 

magistrate judge - in an investigation of domestic terrorism or 

international terrorism - having authority in any district in 

which activities related to the terrorism may have occurred, 
492

may issue a warrant for a person or property within or outside 

that district.”

Stored Wire or Electronic Communications: Pursuant to 18 

U.S.C. § 2703(a) and (b), law enforcement officers may obtain 

federal search warrants for the contents of stored wire or 

electronic communications (email and its attachments) held in 

storage by either an electronic communications service or 

remote computing service from “a court with jurisdiction over 

the offense under investigation.” This means that officers may

obtain a federal search warrant from a federal judge who has 

jurisdiction over the offense in question, although not 

necessarily the place where the communication is stored. For 

example, this provision would allow the government to obtain 

a search warrant from a magistrate judge in the Southern 

District of Georgia for e-mails temporarily stored on the server 

of an Internet Service Provider in California. This nationwide 

provision does not apply to data that does not qualify as “stored 

electronic communications.” Seizure of ordinary data requires 

a warrant in every district in which that data may be located. 

More on this topic is discussed in the Electronic Law and 

Evidence chapter of this book.

Tracking Devices: Pursuant to F.R.Cr.P. 41(b)(4), “a 

magistrate judge with authority in the district has authority 

to issue a warrant to install within the district a tracking 

device; the warrant may authorize use of the device to track 

the movement of a person or property located within the 

district, outside the district, or both.”

18.14.4 Neutral and Detached Requirement

The primary reason for the warrant requirement is to 

interpose a “neutral and detached magistrate” between the 

citizen and the officer engaged in the often-competitive 

enterprise of ferreting out crime. For that reason, any judge 

who issues a federal search warrant must be “neutral and 
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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 

participate in the search. The State Attorney General who was 

actively in charge of the investigation and later was chief 

prosecutor at the trial violated the “neutral and detached” 

requirement when he issued the search warrant. 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.”

18.15 The Components of a Search Warrant Affidavit 

Law enforcement officers must carefully tailor the serious 

decision to proceed by search warrant to prevent unauthorized 

invasions of the sanctity of a person’s home and the privacies 

of life. The Fourth Amendment prohibits general warrants. 

The problem posed by the general warrant is not that of 

intrusion per se, but of a general, exploratory rummaging in a 

person’s belongings. As noted by the Supreme Court:

The Warrant Clause of the Fourth Amendment 

categorically prohibits the issuance of any warrant 

except one “particularly describing the place to be 

searched and the persons or things to be seized.” 

The manifest purpose of this particularity 

requirement was to prevent general searches. By 

limiting the authorization to search to the specific 

areas and things for which there is probable cause 

to search, the requirement ensures that the search 

will be carefully tailored to its justifications, and 

will not take on the character of the wide-ranging 

exploratory searches the Framers intended to 
494

prohibit. Maryland v. Garrison, 480 U.S. 79 

(1987).

To comply with the Fourth Amendment, every search warrant 

must particularly describe: (1) the place to be searched, and (2) 

the person or things to be seized. 

18.15.1 Establishing a Nexus 

A search warrant affidavit must establish a nexus (or 

connection) between the evidence the government is seeking 

and the location it wants to search. An affidavit must provide 

facts that demonstrate probable cause that a piece of evidence 

(e.g., drugs) is located in the place the government wants to 

search (e.g., the defendant’s home). 

There are several specific factors the issuing judge uses to 

determine whether the government has satisfied the “nexus” 

requirement. These factors include: (a) direct observations by 

law enforcement officers; (b) the nature of the crime; (c) the 

nature of the items sought; (d) the opportunity for 

concealment; and (e) the normal inferences as to where a 

criminal would hide evidence. For example, many courts have 

determined that if an individual deals drugs, evidence is likely 

located 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 a 

drug dealer’s home provides the most logical and safe place for 

the dealer to conceal those items. 

The evidence sought cannot be stale. In other words, in an 

affidavit for a search warrant, the officer must establish 

probable cause to believe the evidence sought is currently 

located at the place the officer seeks to search. (An exception 

exists for anticipatory warrants; see below.) When the 

information is outdated, or “stale,” it will not establish 

probable cause. There is no bright-line rule to establish the 
495

point at which 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 support probable cause when the 

criminal activity being investigating is ongoing (e.g., a 

large-scale fraud scheme or drug trafficking operation). 

• The Type of Evidence Sought in the Search: Older 

information may support probable cause when the 

evidence sought is of the sort that a suspect would 

reasonably keep for longer periods (e.g., child 

pornography on a computer or digital storage device). 

• The Nature of the Search Location: Older information 

may still support probable cause when the suspect owns 

the search location or when the search location is a longterm storage unit, etc. 

18.15.2 Anticipatory Search Warrants 

An anticipatory warrant is a warrant based upon an affidavit 

showing probable cause that at some future time (but not 

presently) certain evidence of crime will be located at a 

specified place. United States v. Grubbs, 547 U.S. 90 (2006). 

When judges issue an anticipatory search warrant, they are 

not deciding there is probable cause at the time they sign the 

warrant, but that probable cause will exist upon the 

occurrence of an identifiable “triggering event.” In many cases, 

the triggering event is a controlled delivery of drugs or other 

contraband by law enforcement officers. The government must 

specifically describe the triggering event in the affidavit, and 

it must be something other than the mere passage of time. 
496

Officers may not execute an anticipatory warrant unless and 

until the triggering event specified in the affidavit occurs.

18.15.3 Particularity- The Place to Be Searched

Under the Fourth Amendment, the affidavit must particularly 

describe the place to be searched. In providing this description, 

the officers should be as accurate as possible. However, the 

courts do not require 100% “technical” accuracy. Instead, 

“practical” accuracy determines whether the affidavit 

adequately describes the search location. The test is whether 

the description is sufficient to enable an officer executing the 

warrant to locate and identify the premises with reasonable 

effort, and whether there is any reasonable probability that 

the officer might mistakenly search the wrong premises. Thus, 

an affidavit that contains a technically incorrect address (e.g., 

“187” versus “178”) will not automatically invalidate a search 

warrant, so long as the remainder of the description is 

sufficiently particular to allow law enforcement officers

executing the warrant to ascertain and identify the search 

location.

a. Particularity and Residences

The description of a place, such as a home, may vary depending 

on such factors as whether the house is in a rural or urban 

setting. When describing a home, officers should state the 

nature of the dwelling (e.g., house, apartment, mobile home, 

etc.), along with the complete address, including street 

number, street name, town, and state. They should also 

describe the appearance of the home, such as the number of 

stories; the type of construction (e.g. brick, wood, etc.); type of 

roof (e.g. shingle, slate, metal, etc.); color; number and location 

of doors and windows; chimneys; garage; mailboxes; fencing; 

and a description of the curtilage, including any visible

outbuildings such as garden or tool sheds. Where the residence 

is part of a multi-unit structure such as an apartment complex, 
497

the officers should include the unit number or apartment 

number.

b. Particularity and Persons

When describing a person, the officers should state the 

person’s name (including any known aliases), age, sex, race, 

eye color, hair color, weight, height, and any distinguishing 

marks such as tattoos or scars. If the officers have information 

as to the person’s location, they should include it as well.

c. Particularity and Vehicles

When describing a vehicle, the officers should include the 

name of the owner, make, model, year, color, license number, 

vehicle identification number, any unique markings, and 

location of the vehicle.

18.15.4 Particularity - the Persons or Things to be Seized

The Fourth Amendment requires that a warrant particularly 

describe “the person or thing to be seized.” There are three 

distinct rationales underlying this particularity requirement. 

First, it limits the discretion of officers executing the warrant. 

Second, it informs the subject of the search what items the 

officers are entitled to take. Third, it defines the legally 

permissible scope of the search, since officers may only search 

in locations that could conceal the persons or things to be 

seized.

The degree of specificity required depends on the 

circumstances of the case and the type of items the officer is 

seeking. For example, courts will require a very specific 

description of the items when the warrant seeks books or other 

items that may implicate First Amendment rights, such as free 

speech. Officers have much more latitude when particularly 

describing contraband, such as drugs. Precise description of 
498

this type of criminal evidence can be very difficult. 

Accordingly, in a drug warrant, generic descriptions such as 

“drug paraphernalia” or “drug monies” are generally 

acceptable. Similarly, child pornography warrants can 

describe the items as “child pornography,” “sexual conduct 

between adults and minors,” or as material “depicting minors 

engaged in sexually explicit activity.”

Warrants for stolen property require a more particular 

description, especially when the items the government wants 

to seize are of a common nature, such as jewelry. 

18.15.5 Types of Items That Can Be Seized

F.R.Cr.P. 41(c) provides that a judge can issue a warrant for 

any of the following: (a) evidence of a crime; (b) contraband; (c) 

fruits of crime, or other items illegally possessed; (d) property 

designed for use, intended for use, or used in committing a 

crime; or (e) a person to be arrested or a person who is 

unlawfully restrained. Each item that the officer wishes to 

seize must fall into one, but may fall into more than one, of the 

above categories. As a practical example, photographs 

depicting child pornography are evidence of a crime, 

contraband, fruits of a crime, and items illegally possessed. 

When they are executing a search warrant, the general rule is 

that officers may seize only those items that are particularly 

described in the warrant. The plain view seizure doctrine, as 

discussed in this chapter, provides an exception to this general 

rule. When officers have a search warrant for specified objects, 

and in the course of the search come across some other item of 

incriminating character, they may seize that item. Horton v. 

California, 496 U.S. 128 (1990). For example, if officers have a 

warrant to search for 27” television sets, they can look in those 

areas that could conceal 27” television sets. If, when searching 

those areas, they see an item that they immediately recognize 

as incriminating (e.g., a controlled substance on the floor of a 
499

bedroom closet), they may seize it under the plain view 

doctrine. The plain view doctrine does not expand the scope of 

a search warrant. Items officers seize under the plain view 

doctrine while executing a warrant are not seized pursuant to 

the warrant. Therefore, the officers should list those items on 

a separate inventory. Officers may not broaden the scope of a 

search based on items they find in plain view that are not 

included in the warrant. For example, if officers discover a 

controlled substance on the floor of the bedroom closet, and the 

warrant does not seek controlled substances, the officers may 

not broaden their search to include all areas that could contain 

controlled substances. The officers can only seize the 

controlled substance and continue searching areas that could 

conceal a 27-inch television set. The officers can use the items 

they saw that are outside the scope of the warrant to establish 

probable cause to obtain an additional search warrant. 

18.15.6 False or Misleading Statements in the Affidavit 

Before a judge can issue a search (or arrest) warrant, the 

Fourth Amendment requires a truthful factual showing in the 

affidavit to establish probable cause. In Franks v. Delaware, 

438 U.S. 154 (1978), 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 an officer included a false statement knowingly and 

intentionally, or with reckless disregard for the truth, in the 

warrant affidavit, and if the false statement is necessary to the 

finding of probable cause, the court will omit the false 

statement. If the affidavit’s remaining content does not 

establish probable cause, the search warrant is invalid and the 

court will exclude the fruits of the search. 
500

18.16 Telephonic Search Warrants 

A judge may wholly or partially dispense with a written 

affidavit and base a warrant on sworn testimony. F.R.Cr.P. 

4.1, titled “Complaint, Warrant, or Summons by Telephone or 

Other Reliable Electronic Means,” outlines the procedural 

rules for obtaining telephonic search warrants. Subsection (A) 

of the rule provides that:

“A magistrate judge may consider information communicated 

by telephone or other reliable electronic means when 

reviewing a complaint or deciding whether to issue a warrant 

or summons.”

18.16.1 Purpose of F.R.Cr.P. 4.1

F.R.Cr.P. 4.1 recognizes that modern technological 

developments (e.g., cell phones, facsimile, and email) have 

improved access to judicial officers. The purpose of the rule is 

to encourage federal law enforcement officers to seek search 

warrants in situations when they might otherwise conduct 

warrantless searches.

18.16.2 Telephonic Warrants and Exigent Circumstances

The time necessary to obtain a traditional warrant is relevant 

to determine whether circumstances are exigent. Warrants 

obtained by telephone or other reliable electronic means 

typically take less time. Courts also consider the amount of 

time necessary to obtain a warrant by telephone or other 

reliable electronic means in determining whether exigent 

circumstances exist. Exigent circumstances exist only when 

the critical nature of the circumstances clearly prevented the 

effective use of any warrant procedure. In sum, when an 

exigency is already occurring, no search warrant is required. 

When officers have time to use traditional procedures to obtain 

a search warrant, they must do so. When an exigency is 
501

looming or impending and there is not enough time to use the 

traditional process to obtain a warrant, but there is enough 

time to obtain a warrant telephonically or by other reliable 

electronic means, the officers must use the procedures 

proscribed in F.R.Cr.P. 4.1. Officers cannot merely do nothing, 

let the situation develop until the exigency occurs, and then 

claim they did not have time to get a search warrant.

Absent a finding of bad faith, evidence obtained from a 

warrant issued under F.R.Cr.P. 4.1 is not subject to 

suppression on the ground that issuing the warrant 

telephonically or by other reliable electronic means was 

unreasonable under the circumstances.

18.16.3 Who Can Issue Telephonic Warrants?

Unlike traditional federal search warrants issued pursuant to 

F.R.Cr.P. 41, a state court judge may not issue a telephonic 

warrant. Only federal judges may issue telephonic search 

warrants.

18.16.4 Procedural Requirements

F.R.Cr.P. 4.1(b) sets out a variety of procedural requirements 

for obtaining and executing a warrant by telephone or other 

reliable electronic means.

a. Prepare the “Duplicate Original Warrant”

First, the officer must prepare a “proposed duplicate original 

warrant.” The duplicate original warrant must be in writing, 

although there is no requirement that the affidavit be in 

writing.
502

b. Read It or Transmit It

Second, the officer must read or otherwise transmit the 

contents of the document verbatim to the judge. If the option

is available, the officer may transmit the duplicate original 

warrant to the magistrate judge by e-mail or facsimile.

c. Preparation of “Original” Warrant

If the officer reads the contents of the proposed duplicate 

original warrant, the magistrate judge must enter those 

contents into an original warrant. Of course, the magistrate 

judge may modify the original warrant. In that case, the judge 

will file the modified original and direct the officer to modify 

the proposed duplicate original warrant accordingly.

If the officer sent the proposed duplicate original warrant to 

the judge by reliable electronic means, that transmission may 

serve as the original warrant. A judge who chooses to modify 

the warrant must transmit the modified warrant back to the 

officer by reliable electronic means or direct the officer to 

modify the proposed duplicate original warrant accordingly.

d. Issuance of Warrant

Upon deciding to issue the warrant, the judge must 

immediately sign the original warrant, enter on its face the 

exact time it is issued, and transmit the warrant by reliable 

electronic means to the officer or direct the officer to sign the 

judge’s name and enter the date and time on the duplicate 

original warrant.

e. Time of Execution Must Be Entered on the 

“Duplicate Original Warrant”

The officer must enter the exact date and time the search 

warrant was executed.
503

18.16.5 Recording and Certification Requirements

In addition to the requirements listed above, the judge must 

meet recording and certification requirements.

a. Oath or Affirmation

Upon learning that an officer is requesting a warrant by 

telephone or other reliable electronic means, the judge must 

place under oath, and may examine, the officer and any person 

on whose testimony the application is based. The judge 

administers the oath at the inception of the call.

b. Creating a Record of the Testimony and Exhibits

If the officer does no more than attest to the contents of a 

written affidavit submitted by reliable electronic means, the 

judge must acknowledge the attestation in writing on the 

affidavit. If the judge considers additional testimony or 

exhibits, the judge must have the testimony recorded verbatim 

by an electronic recording device, by a court reporter, or in 

writing.

c. Certification of the Recording

The judge must have any recording or court reporter’s notes 

transcribed, certify the transcription’s accuracy by signature, 

and file a copy of the record and the transcription, along with 

any exhibits, with the clerk of the court. 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 judge who 

issued the search warrant.
504

18.17 Executing Federal Search Warrants 

There are both statutory and case law rules that guide the 

government in the execution of a search warrant. Some of the 

more common rules are listed below.

18.17.1 Who May Execute a Federal Search Warrant?

F.R.Cr.P. 41(e)(1) provides that a search warrant must be 

issued “to an officer authorized to execute it.” Title 18 U.S.C. § 

3105 determines who qualifies as an authorized officer.

A search warrant may in all cases be served by any 

of the officers mentioned in its direction or by an 

officer authorized by law to serve such warrant, 

but by no other person, except in aid of the officer 

on his requiring it, he being present and acting in 

its execution.

Generally, the officers who execute warrant determine the 

best way to proceed with the search.

State and local law enforcement officers may assist federal 

officers in the execution of federal search warrants. Sometimes 

these officers are “cross-designated” as federal law 

enforcement officers, but cross- designation is not required. 

However, a federal law enforcement officer must direct the 

execution of the search warrant.

Private citizens may also lawfully assist officers in the 

execution of a federal search warrant. However, there are 

three general requirements for a private citizen’s 

participation. First, the private citizen’s sole role must be to 

aid the government’s efforts, not to further his or her own 

goals. Second, the government must need the assistance of the 

private citizen. For example, the government often needs 

computer technicians to ensure against data loss during the 
505

seizure of the computer. Third, private citizens may only do 

those things that the government is entitled to do.

18.17.2 Daytime Requirement for the Execution of Federal 

Search Warrant

A federal search warrant must command the officer to execute 

the warrant during the daytime, unless the judge, for good 

cause, expressly authorizes execution at another time. The 

term “daytime” means the hours between 6:00 a.m. and 10:00 

p.m. according to local time. To “execute” the warrant means 

to make initial entry.

After the initial entry, officers may remain on the premises as 

long as reasonably necessary to complete the search.

The government must specifically request permission to 

execute a search warrant during nighttime hours. The judge 

will approve the request if there is reasonable cause to believe, 

based on facts the officer includes in the application for the 

warrant, that a nighttime search is necessary due to the 

likelihood of danger to the officers or destruction of evidence.

Title 21 U.S.C. § 879 provides that “a search warrant relating 

to offenses involving controlled substances may be served at 

any time of the day or night if the judge or United States 

Magistrate Judge issuing the warrant is satisfied that there is 

probable cause to believe that grounds exist for the warrant 

and for its service at such time.” Such cases require no special 

showing for a nighttime search, other than a showing that the 

contraband is likely to be on the property or person to be 

searched.

Finally, F.R.Cr.P. 41(e)(2)(A) provides that officers must serve 

a search warrant within one of two possible periods of time. 

First, the rule provides for service “within a specified time.” 

Thus, the search warrant itself may specify when service is 
506

required. Second, if the warrant does not specify a time for the 

search, officers must serve the warrant within a period “no 

longer than 14 days” from the date of issuance.

So long as officers execute the warrant within the required 

time, they can do so even if the suspect or other occupants are 

not present.

Tracking warrants that authorize installation of a tracking 

device “must command the officer to complete any installation 

authorized by the warrant within a specified time no longer 

than 10 calendar days” from the date the judge issues the 

warrant. Officers must install the tracking device in the 

daytime, “unless the judge for good cause expressly authorizes 

installation at another time.” F.R.Cr.P. 41(e)(2)(C)(i)-(ii).

18.17.3 Use of Force While Executing a Federal Search 

Warrant

The facts of each case determine whether officers may lawfully 

handcuff the occupants of the premises while executing a 

search warrant. The courts look to the “totality of the 

circumstances” to determine if the force was objectively 

reasonable. Among the factors the courts consider in making 

this determination are: (a) the severity of the crime; (b) 

whether the suspect poses an immediate threat to the safety 

of the officers or others; (c) whether the suspect is actively 

resisting or attempting to evade arrest by flight; (d) the 

number of individuals the officers confronted; (e) whether the 

physical force applied could lead to injury; and (f) whether the 

suspect was elderly, a child, or suffering from illness or 

medical disability.
507

18.17.4 Presenting the Warrant Prior to Beginning the 

Search

Officers are not required to present a copy of the search 

warrant to the occupant prior to beginning the search. 

However, where the circumstances permit, the best practice is 

to provide a copy of the warrant to the occupant. At least one 

federal circuit court of appeals (the Ninth) requires officers to 

present a copy of the warrant to the occupant prior to 

beginning the search unless there is a justifiable reason not to 

do so. A copy of the warrant includes the premises description 

and the list of items to be seized, but does not include the 

probable cause affidavit.

18.17.5 Answering the Telephone While Executing a 

Search Warrant

Officers may answer a ringing telephone without violating the 

Fourth Amendment if they are lawfully on the premises 

executing a search warrant. Any incriminating evidence 

acquired from those telephone calls is not subject to 

suppression on grounds of constitutionally protected privacy 

concerns.

18.17.6 Temporary Seizure of Weapons

When, during the execution of a search warrant, officers find 

a dangerous weapon (such as a handgun) that is not listed in 

the warrant and is not obviously contraband or evidence, they 

may temporarily seize it for safety reasons. If the weapon is 

not contraband or evidence of a crime, officers should safely 

return the weapon to its owner upon his release from the scene 

or at the conclusion of the warrant execution.
508

18.17.7 Detaining Occupants - The Summers Doctrine 

A search warrant for contraband carries with it the limited 

authority to detain the occupants of the premises until officers 

complete a proper search. Michigan v. Summers, 452 U.S. 693 

(1981). (the Summers Doctrine). An item is contraband if 

possession of the item is itself unlawful, such as controlled 

substances, illegal firearms, child pornography, and stolen 

property. 

There are three justifications for the detention of occupants 

during the execution of a contraband search warrant. First, 

there is a legitimate law enforcement interest in preventing 

flight in the event officers find contraband, since there is a 

significant likelihood that officers will then arrest one or more 

occupants. It makes sense, therefore, to retain control of those 

persons until the officers make such a determination. Second, 

detaining the occupants minimizes the risk of harm to the 

officers. 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 containers to avoid a use 

of force that might not only damage property, but also delay 

completion of the search. 

The Summers Doctrine applies only if the occupant is in or 

around the residence when the officers execute the search 

warrant. When an individual approaches and attempts to 

enter a residence where officers are executing a search 

warrant, Summers may justify the officers in detaining that 

person. The same rule applies to persons seen leaving the 

premises as officers are about to execute the warrant. While 

there is no bright-line geographic limit, the farther a person is 

from the premises, the less likely the court will uphold the 

detention under the Summers Doctrine. 

Search warrants for evidence that is not contraband, such as 

documents related to tax fraud, do not fall squarely within the 
509

Summers Doctrine. However, during the execution of noncontraband warrants, officers may detain occupants for a 

reasonable time. This includes the time required to identify 

the occupants and determine their relationship to the 

premises and the investigation. Once officers have determined 

that they do not need an occupant for the orderly execution of 

the warrant, and that releasing the occupant poses no threat 

of harm, the officers should release that person. 

As stated above, officers may use objectively reasonable force 

to conduct lawful detentions under the Summers doctrine 

during the execution of a premises search warrant. However, 

officers may not automatically use handcuffs or other 

restraints simply because Summers authorizes a detention. 

Use of restraints must be objectively reasonable based on the 

totality of the circumstances. In Muehler v. Mena, 544 U.S. 93 

(2005), 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. Police 

handcuffed and detained Mena in the garage with other 

occupants for two to three hours while they conducted the 

search. Notably, the occupants of the residence outnumbered 

the officers assigned to supervise them. Relying on the 

dangerous nature of the crime under investigation, the items 

sought in the warrant, and the number of persons found on the 

premises, the Supreme Court held that both the length of 

Mena’s detention and the use of handcuffs were objectively 

reasonable. 

18.17.8 Frisking and Searching Persons on the Premises 

Officers are not justified in automatically “frisking” every 

person located on the premises during the execution of a 

search warrant. Instead, as with any frisk for weapons, officers 

must be able to explain the facts that gave them reasonable 

suspicion to believe the person frisked was presently armed 
510

and dangerous. “The ‘narrow scope’ of the Terry exception does 

not permit a frisk for weapons on less than reasonable belief 

or suspicion directed at the person to be frisked, even though 

that person happens to be on premises where an authorized 

search is taking place.” Ybarra v. Illinois, 444 U.S. 85 (1979). 

Similarly, a premises search warrant does not automatically 

authorize the government to search all of the persons located 

on the premises at the time they execute the warrant. Of 

course, if a person present during the search is listed in the 

warrant, officers may search that person. 

18.17.9 Permissible Search Locations on a Premises 

In United States v. Ross, 456 U.S. 798 (1982), the Supreme 

Court discussed the scope of a search conducted pursuant to a 

premises search warrant: 

A lawful search of fixed premises generally 

extends to the entire area in which the object of 

the search may be found and is not limited by the 

possibility that separate acts of entry or opening 

may be required to complete the search. Thus, the 

warrant that authorizes an officer to search a 

home for illegal weapons also provides authority 

to open closets, chests, drawers, and containers in 

which the weapon might be found. 

a. Premises, Outbuildings, and Curtilage 

Officers may search all buildings and other structures within 

the curtilage, even if not specifically referenced in the search 

warrant. The best practice, however, is to list all known 

outbuildings or significant structures in the search warrant. 
511

b. Vehicles Located on the Curtilage

Pursuant to the premises warrant, officers may search those 

vehicles located on the curtilage of the property that are or 

appear to be owned by or under the control and dominion of 

the premises owner/occupier, even if not specifically listed in 

the search warrant. The vehicle must be parked on the 

curtilage of the premises where the warrant is executed. The 

best practice is to list the owner’s known vehicles in the search 

warrant. Some circuits, such as the Fifth and Seventh 

Circuits, allow a search of vehicles within the curtilage that 

the premises owner does not own or control, but that have 

some other logical connection to the premises. All jurisdictions 

prohibit the search of vehicles that are incidentally present, 

such as a delivery vehicle.

c. Containers

Generally, officers may search any container, located within 

the premises, that is capable of holding the property that is the 

subject of the warrant. However, if the container belongs to a 

person who is only visiting the premises, special concerns 

arise. In addressing this issue, the federal courts have taken 

two different approaches.

The first focuses on the relationship between the visitor and 

the premises that are the subject of the warrant. Under this 

approach, the closer the connection between the visitor and the 

premises, the more likely an officer may search the visitor’s 

personal possessions. The officer may search the property of 

an overnight guest of the homeowner. On the other hand, an 

individual who was simply a casual visitor to the home would 

likely not have a significant enough connection with the 

property to justify a search of the individual’s belongings. The 

officer may not search the personal possessions of a dinner 

guest or a commercial visitor (e.g., appliance repairman) 

pursuant to the warrant.
512

The second approach focuses on the physical possession or 

location of the item in question. Under this approach, the 

officer may not search an item that is in the physical 

possession of the visitor. In that circumstance, the container is 

an extension of the person and clearly outside the scope of a 

premises search warrant. However, the officer may search an 

item not in the physical possession of the visitor because it falls 

outside the scope of a “personal” search.

18.17.10 Damage or Destruction of Property

When executing search warrants, officers 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 

execute the warrant.

18.17.11 Preparing an Inventory

F.R.Cr.P. 41(f)(1)(B) outlines the requirements for completion 

of an inventory following the execution of a search warrant. 

Specifically, the rule provides that “[a]n officer present during 

the execution of the warrant must prepare and verify an 

inventory of any property seized.” Further, the officer who 

prepares the inventory “must do so in the presence of another 

officer and the person from whom, or from whose premises, the 

property was taken.” If either another officer or the person 

whose property is being seized “is not present, the officer must 

prepare and verify the inventory in the presence of at least one 

other credible person.”
513

18.17.12 Providing a Copy of the Warrant and Inventory 

F.R.Cr.P. 41(f)(1)(C) requires that an officer provide a copy of 

the warrant and the inventory following completion of the 

search. Specifically, the rule provides that “the officer 

executing the warrant must give a copy of the warrant and a 

receipt for the property taken to the person from whom, or 

from whose premises, the property was taken; or leave a copy 

of the warrant and receipt at the place where the officer took 

the property.” This does not include the affidavit in support of 

the application for the warrant. 

18.17.13 Warrant Return

F.R.Cr.P. 41(e)(2) requires that a search warrant “designate 

the magistrate judge to whom it must be returned.” F.R.Cr.P. 

41(f)(1)(D) requires that “the officer executing the warrant 

must promptly return it - together with a copy of the inventory 

- to the magistrate judge designated on the warrant. The judge 

must, on request, give a copy of the inventory to the person 

from whom, or from whose premises, the property was taken 

and to the applicant for the warrant.” F.R.Cr.P. 41(f)(3) states, 

however, that “[u]pon the government’s request, a magistrate 

judge – or if authorized by F.R.Cr.P. 41(b), a judge of a state 

court of record – may delay any notice required by this rule if 

the delay is authorized by statute.” Examples of statutes that 

permit delayed notice are F.R.Cr.P. 41(f)(2)(C) (warrants for 

electronic tracking devices), and 18 U.S.C. § 3103a(b) (“sneak 

and peek” or “covert entry” warrants). 

18.18 The Carroll Doctrine (Mobile Conveyance Exception) 

The Supreme Court established the Carroll Doctrine in the 

1925 case, Carroll v. United States, 267 U.S. 132 (1925). The 

courts also refer to the Carroll Doctrine as the Mobile 

Conveyance Exception or the Automobile Exception. It 

provides that if officers have probable cause to believe that a 
514

mobile conveyance located in a public place contains evidence 

of a crime or contraband, the officers may search the mobile 

conveyance without a warrant.

18.18.1 Rationales for the Rule 

There are two separate and distinct rationales underlying the 

mobile conveyance exception to the warrant requirement. 

First, the inherent mobility of vehicles typically makes it 

impractical to require a search warrant, because the occupant 

can move the vehicle quickly out of the locality or jurisdiction 

in which the officer would seek the warrant. Second, while 

Carroll focused on a vehicle’s inherent mobility, recent cases 

have focused on an individual’s reduced expectation of privacy 

in a vehicle to support a warrantless search based on probable 

cause. Pennsylvania v. Labron, 518 U.S. 938 (1996).

18.18.2 Prerequisites for a Search Under the Carroll 

Doctrine 

There are two requirements for a lawful search under the 

mobile conveyance exception. First, there must be probable 

cause to believe that evidence of a crime or contraband is 

located in the vehicle. This means that before conducting a 

warrantless search of a vehicle, officers must have sufficient 

facts available to obtain a warrant from a magistrate judge. 

Under the Carroll Doctrine, however, officers are not required 

to obtain a warrant. 

 

Officers may establish probable cause to search a vehicle in a 

number of ways. For example, officers may be able to establish 

probable cause based on a tip provided by a reliable 

confidential informant. They may establish probable cause 

through their personal observation of evidence or contraband 

in plain view inside a vehicle. The plain- smell corollary to the 

plain view doctrine may also allow officers to establish 
515

probable cause to search a vehicle based on their sense of 

smell. 

The second requirement for a valid search under the mobile 

conveyance exception is that the vehicle be readily mobile at 

the time the officers encounter it. “Readily mobile” means the 

vehicle reasonably appears to be currently operational, or 

operational with minor effort or repair. A vehicle stuck in the 

mud, for instance, is readily mobile even though the driver 

cannot drive it immediately. Similarly, a vehicle that is out of 

gas or has a flat tire or dead battery is readily mobile. On the 

other hand, a vehicle that will obviously remain immobile for 

a long time – such as a car up on blocks –is not a mobile 

conveyance under the Carroll Doctrine. 

There is no requirement that a mobile conveyance actually be 

moving or even occupied at the time of the search, so long as it 

is currently operational and there is probable cause to believe 

it contains contraband or evidence of a crime. 

18.18.3 No “Exigency” Required to Conduct a Search 

Under the Carroll Doctrine 

There is no exigency required to conduct a warrantless vehicle 

search; all that is required is a mobile conveyance and 

probable cause. Even if the government had the opportunity to 

obtain a warrant and failed to do so, the search will still be 

valid if it meets the Carroll Doctrine requirements. 

18.18.4 Timing of a Search Under the Carroll Doctrine 

Once the officers have probable cause to search a readily 

mobile vehicle, they may either conduct the search 

immediately or later at another location. There is no 

requirement that the warrantless search of a vehicle occur 

contemporaneously with its lawful seizure. The justification to 

conduct such a warrantless search does not vanish once the 
516

government secures the car. Carroll Doctrine searches are 

lawful regardless of the unlikelihood that anyone will remove 

the car or tamper with its contents during the period required 

to obtain a warrant. 

Even though the courts have given the government wide 

latitude in deciding when to conduct a vehicle search, officers 

are still required to act reasonably and may not indefinitely 

retain possession of a vehicle and its contents before 

completing a vehicle search. If, for example, officers knew they 

would not be searching a car for two weeks after seizing it, they 

should obtain a search warrant to support the search. 

18.18.5 Scope of a Search Under the Carroll Doctrine 

In United States v. Ross, the Supreme Court defined the 

permissible scope of a search conducted pursuant to the mobile 

conveyance exception: “We hold that the scope of the 

warrantless search authorized by [the mobile conveyance] 

exception is no broader and no narrower than a magistrate 

could legitimately authorize by warrant. If probable cause 

justifies the search of a lawfully stopped vehicle, it justifies the 

search of every part of the vehicle and its contents that may 

conceal the object of the search.” If a search warrant could 

authorize the officers to search for an item in a particular 

location, such as the passenger compartment or trunk of the 

vehicle, they may search there without a warrant under the 

mobile conveyance exception to the warrant requirement. 

Probable cause to search does not automatically entitle the 

government to search every part of a vehicle. Scope of search 

applies to warrantless searches just as it does to searches 

authorized by a warrant. The nature of the object of the search 

limits the scope of the search. For example, if officers have 

probable cause to believe that a vehicle contains a full-size 

shotgun, they may not lawfully look inside the glove 

compartment during the search. However, if officers have 
517

probable cause to search the entire vehicle and discover a 

closed container during the search, they may search the 

container, whether locked or unlocked, if what they are 

seeking could be concealed inside it. 

Officers are generally not required to have a “particularized” 

belief that evidence (e.g., drugs) is located in the trunk before 

they may lawfully search that area. For example, if officers 

find drugs (or drug paraphernalia) in the passenger 

compartment of a vehicle, they may typically search the trunk 

for additional drugs. This is true even if the drugs found in the 

passenger compartment are small, “personal use” amounts. 

If the government has probable cause to believe a specific 

container inside a vehicle contains evidence of a crime or 

contraband, officers may stop and search the vehicle to 

retrieve that container. Once retrieved, they may search the 

container without a warrant under the vehicle exception. 

California v. Acevedo, 500 U.S. 565 (1991). However, the 

probable cause relating to the specific container does not 

support a general search of other areas of the vehicle (e.g., the 

passenger compartment, glove compartment, or trunk). If the 

officers wish to extend their search to the entire vehicle, they 

must have some additional justification to do so, such as 

additional probable cause they develop after the stop, consent, 

or a search incident to arrest. 

Finally, the Supreme Court has extended the mobile 

conveyance exception to include a passenger’s belongings. 

When officers have probable cause to search a car, they may 

search passengers’ belongings, found in the car, that are 

capable of concealing the object of the search. Wyoming v. 

Houghton, 526 U.S. 295 (1999).
518

18.18.6 Homes/Curtilage and the Carroll Doctrine 

In Collins v. Virginia, 138 S.Ct. 1663 (2018), the Supreme 

Court held that the Carroll Doctrine did not permit an officer 

who did not have a warrant to enter the curtilage of a suspect’s 

home to search a motorcycle located in the driveway. The 

Court stressed that an officer must have a lawful right of 

access to a vehicle in order to search it under the Carroll 

Doctrine. 

18.19 Searches Based on Exigent Circumstances 

It is a well-established rule of law that searches conducted 

without warrants are presumptively unreasonable, subject to 

only a few limited exceptions. A warrantless search based 

upon an exigent circumstance is one such exception. Exigent 

circumstances exist when a reasonable person would believe 

that, based on the available facts, an immediate entry or 

search is necessary to prevent the escape of a suspect, the 

destruction of evidence, or the death or injury of a person. 

Exigent circumstances can apply to persons, dwellings, and 

vehicles. 

The government always has the burden of proving a lawful 

search. For this exception to the warrant requirement, the 

government must prove both the existence of probable cause 

and the exigent circumstance. Factors considered by courts in 

determining whether exigent circumstances exist include: (a) 

the gravity or violent nature of the offense with which the 

suspect is to be charged; (b) a reasonable belief that the suspect 

is armed; (c) probable cause to believe the suspect committed 

the crime; (d) strong reason to believe the suspect is in the 

premises being entered; (e) the likelihood that a delay could 

cause the escape of the suspect or the destruction of essential 

evidence; and (f) the likelihood that the safety of the officers or 

the public will be jeopardized by delay. 
519

The scope of a warrantless search is “strictly circumscribed by 

the exigencies which justify its initiation.” Mincey v. Arizona, 

437 U.S. 385 (1978), and Terry v. Ohio. Once the exigent 

circumstances that justified the warrantless search no longer 

exist, the right to conduct a warrantless search also ends. 

The definition of exigent circumstances covers a number of 

situations. Below are the three types of exigent circumstances 

officers are likely to encounter. 

18.19.1 Hot Pursuit 

The Supreme Court established the parameters of the hot 

pursuit exception in Warden v. Hayden, 387 U.S. 294 (1967) 

and United States v. Santana, 427 U.S. 38 (1976). In general, 

the following requirements must exist for hot pursuit to be a 

lawful exigent circumstance: 

• Probable Cause to Arrest. Probable cause must exist to 

arrest the suspect. 

• Serious Crime. The warrantless entry into the home 

must be for a “serious” crime. The more serious the 

crime, the more likely that the warrantless entry to 

effect 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, 466 U.S. 740 (1984).

• Immediate or Continuous Pursuit. There must be an 

“immediate or continuous” pursuit of the suspect. This 

does not require that the officers actually observe the 

suspect commit the crime, nor does it require that the 

officers actually see the suspect flee from the scene of the 

crime. 
520

• From a Public Place. “Hot pursuit” occurs when an 

officer is pursuing a suspect who enters an REP area 

from a public place. A suspect may not evade arrest by 

escaping to a private place.

• Probable Cause to Believe That the Suspect is in the 

Residence. Officers must have probable cause to believe 

the suspect is inside. Officers may base probable cause 

on their own observations or on information provided by 

reliable sources.

18.19.2 Destruction or Removal of Evidence

A second common exigent circumstance involves the actual or 

potential destruction or removal of evidence. This exception 

allows officers to make a warrantless search of an area or item 

when they have sufficient facts that would lead a reasonable 

person to believe that evidence is being, or will be, destroyed 

or removed in the time it would take the officers to obtain a 

search warrant. The test is an objective one, focusing on what 

a reasonable person in the officers’ position would believe 

based on the facts available to them at the time.

As an example, when an occupant of a home, upon seeing law 

enforcement officers standing on her porch, hurriedly begins 

to pour illegal drugs down a drain, the potential destruction of 

evidence may allow a warrantless entry.

The federal circuit courts of appeal differ in what they require 

for a lawful warrantless search to prevent destruction of 

evidence. The majority rule, (followed in the Sixth, Eighth, and 

D.C. Circuit Courts of Appeal), holds that a warrantless search 

to prevent the destruction or removal of evidence is justified if 

the government can prove two factors: (1) a reasonable belief 

that third parties are inside the dwelling; and (2) a reasonable 

belief that the loss or destruction of evidence is imminent.
521

In contrast, the Tenth Circuit Court of Appeals has announced 

a four- part test to determine whether the imminent 

destruction of evidence will justify a warrantless entry: (1) any 

entry should be made pursuant to clear evidence of probable 

cause; (2) a warrantless entry is available only for serious 

crimes and in circumstances where the destruction of evidence 

is likely; (3) the entry must be limited in scope to the minimum 

intrusion necessary; and (4) the entry must be supported by 

clearly defined indicators of exigency that are not subject to 

police manipulation or abuse.

18.19.3 Emergency Scene

The need to protect or preserve life typically justifies actions 

that would otherwise violate the Fourth Amendment. 

Numerous state and federal cases have recognized that the 

Fourth Amendment does not bar the government from making 

warrantless entries and searches when it reasonably believe 

that a person within is in need of immediate aid.

Examples of “emergency” situations in which courts found 

exigent circumstances include: (a) a report of a woman and 

child in danger in a crack house; (b) a report that a victim had 

been stabbed; (c) an explosion in an apartment; (d) a report 

that children had open access to controlled substances; (e) the 

need to render medical aid to a defendant who had been shot 

by the police; (f) reports of gunshots from inside a residence; 

(g) activation of a burglar alarm; (h) finding a blood puddle on 

the driveway with a trail of blood leading into the home; and 

(i) the existence of a methamphetamine lab.

A valid emergency scene search must usually meet two 

requirements: (1) officers must have objectively reasonable 

grounds to believe that there is an emergency at hand and an 

immediate need for their assistance for the protection of life or 

property; and (2) there must be some reasonable basis, 
522

approximating probable cause, to associate the emergency 

with the area or place to be searched. 

Brigham City v. Stuart eliminated a previous requirement 

that the search not be primarily motivated by the intent to 

arrest and seize evidence. In the context of an emergency 

scene, the term “probable cause” means facts exist that would 

lead a reasonable person to believe that a person is in some 

type of danger. 

As with any lawful warrantless search, officers or other 

government agents may seize any evidence that is in plain 

view during the course of their legitimate emergency 

activities. For example, firefighters responding to a call may 

seize evidence of arson that is in plain view. 

Finally, there is no murder-scene or crime-scene exception to 

the Fourth Amendment’s warrant requirement. Officers may 

enter an emergency scene without a warrant to tend to victims 

and locate suspects. However, after those tasks are complete, 

the emergency is over. When the emergency ends, so does an 

officer’s right to be present in the location without a warrant 

or valid consent. If the officers stay behind and process the 

scene without first obtaining a warrant or valid consent, the 

evidence they gather will probably not be admissible in court. 

In three separate cases, the Supreme Court refused to adopt a 

crime- scene exception. In Mincey v. Arizona, the Court 

declined “to hold that the seriousness of the offense under 

investigation itself creates exigent circumstances of the kind 

that under the Fourth Amendment justify a warrantless 

search.” Later, in Thompson v. Louisiana, 469 U.S. 17 (1984), 

the Court found a “murder scene” exception “inconsistent with 

the Fourth and Fourteenth Amendments.” Finally, in Flippo v. 

West Virginia, 528 U.S. 11 (1999), the Court reiterated its 

earlier rejections of a “‘murder scene exception” to the Warrant 

Clause of the Fourth Amendment.” 
523

18.20 Consent Searches 

“It is ... well-settled that one of the specifically established 

exceptions to the requirements of both a warrant and probable 

cause is a search that is conducted pursuant to consent.” 

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). When the 

government obtains valid consent to search a given area or 

object neither reasonable suspicion nor probable cause, is 

required. In situations where officers have some evidence of 

illicit activity, but lack probable cause to arrest or search, a 

search authorized by valid consent may be the only means of 

obtaining important and reliable evidence. Consent may be 

expressly sought from and given by a suspect (e.g., “Do you 

mind if we search your vehicle?”). 

For a consent search to be valid: 

• The consent must be voluntarily given, and 

• The individual who consents must have either actual or 

apparent authority over the place to be searched. 

18.20.1 Voluntariness 

The Fourth Amendment requires that officers not coerce 

consent by force or threat, either explicit or implicit. An 

individual who provides consent must do so voluntarily, not as 

a result of duress or coercion. Courts look at the totality of the 

circumstances surrounding a grant of consent, analyzing all 

the circumstances to determine whether it was voluntary or 

coerced. Factors a court will consider in deciding whether 

consent was voluntary include: 

• The age, education, and intelligence of the individual 

granting consent;

• The individual’s knowledge of the right to refuse 
524

consent;

• The length of the individual’s detention;

• The repeated and prolonged nature of any questioning;

• Whether the consent was in writing;

• The use of physical punishment, such as the deprivation 

of food or sleep;

• Whether the individual cooperated in the search, such 

as by assisting law enforcement officers in opening a 

locked container;

• Whether the individual was in custody at the time the 

consent was given (although custody alone is not enough 

in itself to demonstrate a coerced consent to search);

• The presence of coercive police procedures, such as 

displaying weapons or using force;

• The individual’s past experience in dealing with law 

enforcement officers;

• Whether the individual was under the influence of any 

drugs or alcohol;

• Whether officers notified the individual of his or her 

Miranda rights or told the individual that he or she had 

the right to refuse consent. While the law does not 

require either statement, one who consents after being 

so informed will have a very difficult time challenging 

the voluntariness of his or her consent;

• Whether the police made promises or 

misrepresentations to the individual in order to obtain 
525

the consent; 

• The location where the individual gave consent (i.e., on 

a public street or in the confines of a police station); 

• Whether the officers told the individual they could 

obtain a search warrant; and 

• Whether officers made repeated requests for consent. 

Acquiescence to a law enforcement officer’s show of authority 

is not voluntary consent. If an officer falsely asserts an 

independent right to make the search, consent is not valid. For 

example, when the defendant consented only after the officer

falsely asserted that he had a warrant; it was not truly 

voluntary in that he was “announcing in effect that the 

[individual] has no right to resist the search.” Bumper v. North 

Carolina, 391 U.S. 543 (1968). Likewise, informing the suspect 

that a warrant is on the way, when that is not true, also makes 

consent involuntary. On the other hand, if a warrant has been 

properly signed and issued by a judge but has not yet arrived 

at the residence, officers may begin their search. The 

government has the burden of proving that the consent was 

voluntary. It is not enough to show mere acquiescence to a 

claim of lawful authority. 

Officers may infer consent from a suspect’s words or actions. 

For example, assume an officer knocks on a door and asks for 

permission to enter a residence when a person answers. If the 

person steps back and clears a path for the officer to enter, the 

officer can infer consent from the person’s actions, even if the 

person does not say anything. 

18.20.2 Actual or Apparent Authority 

The second requirement is that the individual who consents 

must have either actual or apparent authority over the place 
526

to be searched. Actual authority comes “from the individual 

whose property is searched.” Illinois v. Rodriguez, 497 U.S. 177 

(1990). A third party “who possesses common authority over or 

other sufficient relationship to the ... effects sought to be 

inspected” also has actual authority to consent to a search. 

United States v. Matlock, 415 U.S. 164 (1974). Ownership of 

the property does not solely determine common authority. Any 

person with joint access to or control over the property has 

authority to consent to search. All joint users of property 

assume the risk that one of them might permit a search of the 

shared area or item. 

However, the consent of one party who has authority over the 

place to be searched is not valid if another party with authority 

is physically present and expressly refuses to give consent for 

the search. Georgia v. Randolph, 547 U.S. 103 (2006); 

Fernandez v. California, 571 U.S. 292 (2014). Officers are not 

required to attempt to locate any or all of those who might have 

authority over the premises to determine whether they are 

willing to consent to search. The removal of a potential objector 

must be objectively reasonable, such as an occupant who is 

absent due to a lawful detention or arrest. Fernandez v. 

California. On the other hand, officers may not isolate or 

remove the potentially non-consenting party just to avoid a 

possible objection to the search. 

Officers may also obtain valid consent to search from an 

individual who has apparent authority over the place or item 

to be searched. This typically occurs when an officer conducts 

a warrantless search based upon the consent of a third party 

whom the officer reasonably, but mistakenly, believes 

possesses common authority over the object or area. If the 

officer’s belief is reasonable considering all of the facts 

available at the time of the search, the search will still be valid, 

despite the fact that the consenting party lacked actual 

authority to give consent. Illinois v. Rodriguez. 
527

18.20.3 Scope of a Consent Search 

“The standard for measuring the scope of a suspect’s consent 

under the Fourth Amendment is that of ‘objective’ 

reasonableness – what would the typical reasonable person 

have understood by the exchange between the officer and the 

suspect?” Florida v. Jimeno, 500 U.S. 297 (1991). In answering 

this question, courts look at not only the words used by both 

the officer and the person, but also the overall context in which 

the exchange took place. For example, in a situation involving 

a consent search of a vehicle, a general grant of permission to 

“search the car” allows an examination of the entire vehicle, to 

include any containers or compartments within the vehicle 

that could hold the item(s) sought. The owner/operator’s 

consent to search the vehicle does not authorize the officer to 

search a passenger’s personal items. 

It is typically unreasonable, however, to believe that an 

individual who has given a general consent to search is 

consenting to the damage or destruction of the property. 

Officers should seek additional, express permission to search 

a locked container (e.g., a locked briefcase) and proceed only if 

the individual consents. To support the reasonableness of any 

such search, the officer should refrain from damaging or 

destroying the container in the process of opening it. 

An individual may limit the scope of any consent by saying 

something like, “You may search all the rooms except the 

bedrooms.” The government must honor such a limitation. An 

individual may also revoke consent. When an individual 

revokes consent, the government is required to stop searching, 

unless another exception to the Fourth Amendment’s warrant 

requirement (e.g., probable cause to search a vehicle) is 

present. 

18.20.4 Third-Party Consent Situations 
528

Officers may confront a variety of third-party consent 

situations. The following are some of the most frequently 

occurring ones. 

a. Spousal Situations

Absent an affirmative showing that the consenting spouse has 

no access to the property searched, the courts generally hold 

that either spouse may consent to search all of the couple’s 

property. Several federal circuits have held that a spouse’s 

consent may be effective even after he or she leaves the marital 

home. As discussed above, however, the consent of one party 

who has authority is not valid if another party with authority 

is present and expressly refuses to give consent for the search. 

Georgia v. Randolph. 

b. Parent - Child Situations

Consent in parent-child situations can be divided into cases in 

which the child is a minor, and those where the child is 

eighteen years of age or older. 

In cases where the child is a minor, a parent can usually 

consent to a search of the child’s belongings or living area, such 

as the bedroom. 

Circuit courts have addressed the issue of whether a minor 

child may consent to the search of a parent’s home or property. 

Assuming that the child has authority over the area these 

circuits hold that the fact that the child is a minor, per se, does 

not 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. Officers should 

exercise caution and obtain additional guidance from the 

appropriate legal advisor in any situation involving the 

consent of a minor. 
529

When an adult child lives in the parent’s home, the issue of 

parental consent is more complicated. In determining whether 

a parent may consent to a search of an adult child’s living 

areas, courts have focused on two distinct questions. 

First, does the adult child pay rent to live in the home? When 

an adult child pays rent, courts typically treat the relationship 

as landlord-tenant rather than a parent-child. Second, has the 

adult child taken any steps to deny the parents access to or use 

of the property or living area in question? Examples of this 

include the installation of locks on a bedroom door, or an 

explicit or implicit agreement between the parties that the 

parents will not access the area. The more steps the adult child 

has taken to deny parents access, the more likely those parents 

will be unable to consent to a search of the child’s property or 

living area within the parents’ home. 

c. Roommate Situations 

An individual who shares a residence with another person 

assumes the risk that the other person might consent to a 

search of all common areas of the residence, as well as all areas 

to which the other person has access. However, one roommate 

may not generally give consent to search the personal property 

or exclusive spaces (e.g., bedroom) of the other. 

18.21 Inventory of Impounded Property 

An inventory is a well-defined exception to the warrant 

requirement of the Fourth Amendment. An inventory occurs 

when law enforcement officers search a vehicle or other 

container, locate and identify its contents, and secure the 

contents if necessary. Once law enforcement officers have 

lawfully impounded an item (e.g., a car), they can conduct an 

inventory if they do so “reasonably.” South Dakota v. 

Opperman, 428 U.S. 364 (1976). Inventories are routine, noncriminal searches that do not require probable cause or a 
530

warrant. An inventory must not be a ruse for a general search 

for incriminating evidence. Rather, the policy or practice 

governing inventories should be designed to produce a list of 

personal property found in the vehicle. An inventory is invalid 

when conducted in bad faith or for the sole purpose of 

conducting a criminal investigation. 

An officer may seize evidence found during a lawfully 

conducted inventory under the plain view doctrine. Seized 

evidence may provide probable cause for a warrant or for a 

more thorough search under an exception to the warrant 

requirement, such as the Carroll Doctrine. 

18.21.1 Justifications for an Inventory 

The Supreme Court has recognized three justifications for the 

warrantless inventory of lawfully impounded property. First, 

law enforcement must protect the owner’s property while it 

remains in government custody. Second, an inventory protects 

the officers against claims or disputes over damaged, lost, or 

stolen property. Third, an inventory protects officers from 

potential dangers that the property may pose. 

18.21.2 Requirements for an Inventory 

There are two requirements for a lawful inventory. First, 

officers must have lawful custody of the property they are 

inventorying. Second, the officers must conduct the inventory 

pursuant to a standardized policy. 

a. Lawful Impoundment 

An inventory is not valid if the property 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 
531

violations), or (b) law enforcement’s “community caretaking” 

function.

b. Standardized Policy

Inventories are valid only if the government agency has a 

standardized inventory policy, and the officers know and 

follow the policy. Standardized policies promote the 

underlying rationale for the inventory exception to the Fourth 

Amendment warrant rule by removing officer discretion to 

determine the scope of the inventory. This absence of 

discretion ensures that officers will not use inventories as a 

purposeful and general means of discovering criminal 

evidence.

While a standardized inventory policy is required, several 

courts have upheld unwritten policies based upon testimony 

regarding standard practices within an agency. Nonetheless, 

the best way for law enforcement agencies to avoid potential 

legal challenges to inventories is to maintain a written 

standardized inventory policy. Law enforcement agencies may 

establish their own standardized policies, so long as they 

reasonably construct the policies to accomplish the goals of 

inventories and conduct the inventories in good faith.

18.21.3 Scope of an Inventory

The standardized inventory policy of a particular agency 

defines the scope of an inventory. Generally, inventories may 

not extend any further than is reasonably necessary to 

discover valuables or other items for safekeeping. For example, 

when conducting an inventory of a vehicle, officers would not 

be justified in looking inside the heater ducts, the door panels, 

the gas tank, or the spare tire. Ordinarily, individuals do not 

keep valuables in such locations.
532

Officers may conduct an inventory of passenger 

compartments, including the glove compartment, since it is a 

customary place for documents of ownership and registration 

as well as a place for the temporary storage of valuables. 

Courts have also found inventories of the trunk valid. Officers 

may conduct an inventory of containers, locked or unlocked, so 

long as the standardized inventory policy permits. Excessive 

or unnecessary destruction of property during an inventory 

may violate the Fourth Amendment, even though the entry 

itself is lawful and the fruits of the search not subject to 

suppression. Officers should use keys or other tools to enter a 

locked trunk in order to comply with the Fourth Amendment. 

Finally, a valid inventory may include the engine 

compartment of a vehicle.

18.21.4 Location of an Inventory

Although inventories typically occur at an agency station or an 

impoundment facility, rather than at the place of the arrest, 

the Fourth Amendment does not require that the government 

conduct inventory searches at any particular location. Officers 

may conduct an inventory search on-site, before impounding 

the property.

18.22 Administrative Searches 

The Supreme Court has allowed searches for certain 

administrative purposes, without particularized suspicion of 

misconduct, if those searches are appropriately limited. 

Generally known as “inspections,” these types of 

administrative searches can include inspections of both 

personal and real property (for example, offices and places of 

business). Inspectors must conduct administrative searches 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 
533

discretion of the officers conducting the search. Officers cannot 

use an inspection as a subterfuge to avoid Fourth Amendment 

requirements in order to obtain criminal evidence. 

Inspectors may seize criminal evidence they discover, during 

the course of a valid administrative search, under the plain 

view doctrine, and law enforcement officers may use it to 

establish probable cause to obtain a criminal search warrant. 

18.22.1 Sobriety Checkpoints 

The use of highway sobriety checkpoints does not violate the 

Fourth Amendment. Michigan Dep’t of State Police v. Sitz, 496 

U.S. 444 (1990). In reaching this conclusion, the Supreme 

Court found that a state’s interest in preventing accidents 

caused by drunk drivers outweighed the minimal intrusion 

caused by temporarily stopping drivers. 

18.22.2 Driver’s License and Registration Checkpoints 

In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme 

Court suggested that a Sitz type roadblock to verify driver’s 

licenses and vehicle registrations would be permissible. 

Several federal circuits have since expressly approved them. 

18.22.3 Information-Gathering Checkpoints 

“[S]pecial law enforcement concerns will sometimes justify 

highway stops without individualized suspicion.” Illinois v. 

Lidster, 540 U.S. 419 (2004). This is the case when law 

enforcement officers set up a checkpoint to gather information 

regarding a previous crime. In Lidster, police set up a 

checkpoint in the area of a fatal accident one week after it 

occurred. The police were trying to find motorists who may 

have been witnesses to the accident. The Supreme Court 

upheld the checkpoint. No individualized suspicion is 

necessary when the stop’s primary law enforcement purpose is 
534

not to determine whether a vehicle’s occupants are committing 

a crime, but to ask them, as members of the public, for help in 

providing information about a crime, in all likelihood, 

committed by others. 

18.22.4 Checkpoints for General Crime Control Purposes 

The Supreme Court has never approved a checkpoint program, 

the primary purpose of which was to detect evidence of 

ordinary criminal wrongdoing. In City of Indianapolis v. 

Edmond, 531 U.S. 32 (2000), police officers set up a checkpoint 

to discover drugs. The Supreme Court held the checkpoint was 

unlawful because its primary purpose was to advance “the 

general interest in crime control.” Individualized suspicion is 

required when police employ a checkpoint primarily for 

investigating crimes. 

18.22.5 Administrative Inspections of Businesses 

Inspections of businesses, such as those in the food and drug 

industry, are relatively commonplace. These businesses are 

subject to inspection for a variety of reasons, including 

ensuring compliance with fire, health, and safety regulations. 

Generally, inspectors must conduct these types of 

administrative searches with “administrative” warrants. 

Issuance of an administrative warrant does not require 

probable cause in the criminal law sense. Instead, courts will 

look to see if a valid public interest justifies the inspection. If 

it does, then there is probable cause to issue a warrant for a 

limited administrative inspection. Specific evidence of an 

existing violation or reasonable legislative or administrative 

standards for conducting an inspection will provide probable 

cause for an administrative warrant. A regulatory scheme 

must be in place that authorizes the administrative search. 

Legislative, administrative, or judicially prescribed standards 
535

for conducting an inspection must exist before there is 

probable cause to issue an administrative warrant.

Officers should seek consent to conduct an administrative 

search and seek a warrant only after entry is refused.

Special rules apply to administrative inspections of what the 

law designates as a closely regulated industry. Firearms and 

alcohol industries are among the most “closely regulated” 

industries. Inspections of closely regulated industries 

ordinarily do not require an administrative warrant.

There are two justifications for allowing warrantless 

administrative searches of closely regulated industries. First, 

closely regulated businesses deal in products that are 

potentially hazardous for various reasons. If an administrative 

inspection of businesses carrying those products is to be 

effective and serve as a credible deterrent, then unannounced, 

even frequent, inspections are essential. Second, the owner or 

operator of commercial premises in a “closely regulated” 

industry has a reduced expectation of privacy.

Warrantless searches of closely regulated industries must still 

be reasonable. Inspectors may not use them as a pretext for 

gathering criminal evidence.

18.22.6 Sensitive Government Facilities and Airports

Security screening at sensitive government facilities and 

airports generally consists of using magnetometers, explosives 

detectors, and x-ray machines to examine individuals and 

their containers. The use of both magnetometers and x-ray 

machines to scan individuals and their belongings is a search 

implicating the Fourth Amendment. The courts evaluate these 

searches in light of the presumption that warrantless searches 

are presumed to be unreasonable unless they fall within one of 

the recognized exceptions to the warrant requirement.
536

a. Searches at Security Checkpoints 

Security screening searches at facilities such as airports, 

military bases, courthouses, and other sensitive government 

facilities fall within the class of administrative searches that 

are conducted as part of a general regulatory scheme in 

furtherance of an administrative purpose, rather than as part 

of a criminal investigation to secure evidence of crime. The 

government has a substantial interest in preventing the 

introduction of dangerous material onto airplanes and into 

sensitive government facilities, which outweighs the minimal 

intrusion on the liberty of the individual who is the subject of 

the search. Therefore, searches of those who present 

themselves for entry into those areas are reasonable when 

carried out in accordance with a regulatory scheme. 

b. Searches Before and After Security Checkpoints 

Different standards apply to searches conducted at designated 

security checkpoints as opposed to those conducted in other 

areas of airports or sensitive government facilities. In airports, 

for instance, persons who have not attempted to access the 

secure terminal are not subject to an administrative search. 

Intrusions into their REP requires some other Fourth 

Amendment justification, like a Terry frisk. The same applies 

at a federal courthouse or a military base. Prior to the time a 

person presents for entry into the facility, officers cannot 

compel him or her to undergo an administrative search. If 

people choose to enter the area, however, they must pass 

through the security checkpoint. The administrative search at 

the checkpoint must be no more intrusive than necessary to 

accomplish the agency’s regulatory purpose. Once people have 

successfully passed through the checkpoint, the 

administrative search is over and the exception no longer 

applies. A warrant or other Fourth Amendment exception will 

be required to justify any further intrusions. 
537

c. The Point of No Return

Individuals wishing to fly on an airplane or enter a sensitive 

government facility are required to participate in the security 

screening process. Those not willing to undergo security 

screening have the option of choosing not to travel by air or not 

to enter the government facility. In fact, administrative 

screening searches are valid only if they recognize the right of 

a person to avoid a search by electing not to enter the security 

checkpoint area.

While an individual has the right to avoid a search by choosing 

not to enter a secure area, that right is not without limits. 

Someone who begins the security screening process no longer 

has the right to avoid a search by turning back. A rule allowing 

someone to leave without a search after an inconclusive x-ray 

scan would encourage terrorism by providing a secure exit 

whenever detection was likely. A security- screening agent has 

a duty to locate firearms and explosive devices carried by 

persons seeking entry. The agent could not fulfill this duty if 

the agent could not conduct a visual inspection and limited 

hand search after an inconclusive x-ray scan. Thus, one who 

chooses to avoid a search must elect not to enter the controlled 

area before placing baggage on the x-ray machine’s conveyor 

belt or walking through the magnetometer.

18.22.7 Border Searches – In General

The government has a very strong interest in border protection 

-- repelling invasion, intercepting dangerous persons and 

contraband, collecting duties, and preventing the entry of 

diseases. Courts generally find this compelling government 

interest greatly outweighs an individual’s reduced expectation 

of privacy when crossing a border. Accordingly, the courts are 

likely to find government intrusions at the border reasonable 

in many types of circumstances. Because of the breadth of 

border search authority, the power to conduct border searches 
538

is restricted to certain categories of federal law enforcement 

officers.

Federal courts have focused on two factors in analyzing the 

reasonableness of such intrusions:

• The category of the intrusion, and

• The geographic limits of the government’s border 

authority.

There are two categories of border intrusion: (1) routine and 

(2) non-routine. The reasonableness standard of the search 

depends on the search category. 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.

18.22.8 Routine Border Search

a. Scope

The traveler’s own reduced expectation of privacy when 

crossing the border determines, in part the scope of a routine 

border search. 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 actions, if the agent requires them, are slightly more 

intrusive, they are still within the scope of a routine border 

search: (1) remove shoes; (2) empty the contents of wallets or 

purses; and (3) lift shirts or skirts.

b. Basis

Properly designated officers may conduct a border search even 

when they have no suspicion that the traveler is violating the 
539

law. Agency policies may set some restrictions on those officers 

with regard to conducting the searches and choosing which 

travelers to search. Violating those restrictions may expose the 

officers to disciplinary action but will not usually result in 

suppression of any evidence found.

18.22.9 Non-routine Border Search

a. Scope

The traveler’s own expectations also determine, at least in 

part, the scope of a non-routine border search. Some 

inspections are a customary part of crossing an international 

border. Others are very intrusive and therefore non-routine. A 

full strip search, an X-ray examination of the body, a demand 

to remove an artificial leg and a body cavity search are 

examples of non-routine border searches. Certain detailed 

searches of vehicles and other belongings may also be nonroutine. Detailed disassembly and partial destruction of 

personal effects and drilling holes in car bodies are non-routine 

border searches. Finally, the courts may consider lengthy 

detentions of persons – those lasting hours rather than 

minutes -- non-routine seizures of the individual.

b. Basis

At a minimum, officers must have reasonable suspicion of a 

violation for non-routine border searches and seizures. Some 

courts have required more. In one case, a court order founded 

on reasonable suspicion was required before a person could be 

involuntarily x- rayed. In another case, officers were required 

to obtain a court order founded on reasonable suspicion within 

48 hours before they could continue to detain a suspected drugcontaining balloon swallower. Only medical personnel can 

conduct body cavity searches, and a court has defined the 

reasonable suspicion needed to justify such a search as 

requiring a “clear indication” or a “plain suggestion” that the 
540

suspect is concealing contraband in the cavity. Agents cannot 

open sealed letters that apparently contain only 

correspondence without consent or a search warrant.

18.22.10 Geographic Limits of the Border

Border search authority exists only when there is some 

connection, or “nexus,” to the border. Agents can conduct 

border searches lawfully in three areas: (a) the actual border; 

(b) the functional equivalent of the border; and (c) the extended 

border. Agents do not have to intercept persons and objects 

within inches of the border, and border stations do not have to 

be directly at the border. However, mere entry of a person or 

object into the United States does not mean that authority to 

conduct a border search persists no matter where and when 

law enforcement discovers that person or object.

a. Actual Border

Agents can conduct a border search 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. Functional Equivalent of the Border

Sometimes seaports and airports receiving international 

shipments and passengers are many miles inland from the 

nation’s actual borders. For example, ships departing 

Singapore may first dock in Philadelphia (well inland on the 

Delaware River), and flights leaving Paris may first touch 

American soil in Kansas City. In such situations, the 

Philadelphia dock and the Kansas City airport are the 

functional equivalent of the border.
541

The concept of “functional equivalent of the border” applies to 

searches and seizures at places other than international 

airports and seaports. For example, imported items may be 

stored temporarily in a bonded warehouse before legally 

entering the United States. The courts have upheld searches 

of persons exiting those facilities as searches at the functional 

equivalent of the border. The courts have upheld searches of 

foreign mail, persons who have access to bonded shipments, 

and, in very limited circumstances, foreign merchandise held 

in a Foreign Trade Zone for purposes other than those listed 

in the Foreign Trade Zone Act of 1934 as searches at the 

functional equivalent of the border.

Even if the person or object crossed the border or its functional 

equivalent some time before, certain federal officers can 

conduct a border search if they can articulate reasonable 

suspicion that criminal activity is afoot. Properly designated 

officers cannot assert extended border search authority unless:

• The officer is reasonably certain that a nexus exists 

between the person or object and either a bordercrossing by them or contact by them with something that 

has itself crossed the border;

• The officer is reasonably certain that no material change 

has occurred to the object or person since this nexus has 

formed; and

• The officer had reasonable suspicion that the officer will 

uncover criminal activity by the stop or search.

c. Extended Border Search Authority

Officers sometime rely on extended border search authority is 

when they follow smugglers from the border to their in-country 

rendezvous point, to catch other members of the smuggling 

conspiracy waiting there.
542

18.22.11 Persons and Objects Entering the Country

Properly designated officers may stop and search persons and 

objects entering the United States if the following conditions 

exist:

• The officer is reasonably certain that either a nexus 

exists between the person or object and a border crossing 

by the person or contact by the person with something 

that has itself crossed the border;

• The officer is reasonably certain that no material change 

has occurred to the object or person since this nexus has 

formed, and

• The officer stops and/or searches at the first practical 

detention point after the nexus has formed.

18.22.12 Persons and Objects Leaving the Country

Properly designated officers may stop and search persons and 

objects leaving the United States if the following conditions 

exist:

• The officer is reasonably certain that a nexus will arise 

between the person or object and either a bordercrossing by them or contact by them with something that 

will itself cross the border;

• The officer is reasonably certain that no material change 

will occur to the object or person before this nexus has 

formed; and

• The officer stops and/or searches at the last practical 

detention point before the nexus has formed.
543

18.23 Foreign Searches 

Neither the Fourth Amendment nor the exclusionary rule 

applies to foreign searches and seizures. However, for United 

States citizens and resident aliens, the Fourth Amendment 

applies to foreign searches and seizures: (1) conducted 

exclusively by the United States government; (2) conducted by 

the United States in a “joint venture” with foreign authorities; 

or (3) when foreign authorities act as agents for the United 

States.

18.23.1 Searches by Foreign Authorities

The exclusionary rule does not require the suppression of 

evidence seized by foreign officials during a search, even when 

the target of that search is an American citizen, unless:

• The conduct of the foreign officials would “shock the 

judicial conscience.”

• United States law enforcement agents or officers 

substantially participate in the foreign search or seizure, 

or use the foreign officials as agents of the United States. 

In situations where law enforcement officers of the 

United States engage in a “joint venture” with foreign 

officials, the protections of the Fourth Amendment will 

apply, and application of the exclusionary rule may 

result. Courts will determine on a case-by-case basis 

whether the participation of federal law enforcement 

officers renders a search a “joint venture.” The mere 

presence of federal officers will not automatically make 

the search a “joint venture,” nor will simply providing 

information to a foreign official.
544

18.23.2 Foreign Searches of Non-Resident Aliens By 

American Law Enforcement Officers

In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), 

the Supreme Court addressed the issue of whether the Fourth 

Amendment applies to the search and seizure by United States 

agents of property located in a foreign country that a 

nonresident alien owns. The Court answered this question in 

the negative, holding that the purpose of the Fourth 

Amendment was to protect the people of the United States 

against arbitrary action by their own Government; the 

provision was never intended to restrain the actions of the 

federal government against aliens outside United States 

territory. The Court noted, however, that aliens receive 

constitutional protections when they are within the territory 

of the United States and have substantial connections with the 

country. 

Although the Fourth Amendment does not apply to foreign 

searches of a non-resident alien’s property, controls exist over 

the investigative activities of American agents operating in 

foreign countries. Besides the obligations imposed by the host 

countries themselves, Congress has restricted American 

agents’ foreign activities. For example, in the narcotics area, 

Congress has prohibited American agents from directly 

effecting an arrest in any foreign country as part of any foreign 

police action with respect to narcotic control efforts. Congress 

has also prohibited American agents from interrogating or 

being present during the interrogation of any United States 

person arrested in any foreign country with respect to narcotic 

control efforts. Additionally, the United States has entered 

into agreements and treaties with other countries, which 

provide for mutual legal assistance and establish procedures 

for obtaining evidence in criminal investigations abroad. The 

Office of International Affairs can be reached through the DOJ 

Main Switchboard (202) 514-2000. This office provides advice 

and assistance regarding the requirements for these 
545

agreements and maintains a current list of mutual legal 

assistance agreements and treaties.

18.23.3 Searches of U.S. Citizens and Resident Aliens in 

Foreign Countries

The Fourth Amendment applies to searches and seizures 

against U.S. citizens and resident aliens while abroad when 

conducted by, on behalf of, or jointly with the United States 

Government. The Fourth Amendment applies to overseas 

searches in three related situations: (1) when only United 

States law enforcement personnel conduct the search; (2) when 

foreign officials acting on behalf of the United States 

Government conduct the search; and (3) when the search is a 

“joint venture” between the United States and foreign officials.

Foreign searches raise privacy issues that do not always have 

clear solutions. Except for U.S. embassies overseas, F.R.Cr.P. 

41 does not authorize a federal judge to issue a search warrant 

for a location outside the United States.

The Clarifying Overseas Use of Data Act (the “CLOUD” Act) 

authorizes United Stated federal judges to issue search 

warrants for electronic communications stored on the servers 

of Internet Service Providers (ISPs) that are subject to United 

States jurisdiction, regardless of whether the ISP server is 

located within or outside the United States. This chapter on 

Electronic Law and Evidence covers this topic in more detail.

In fact, even if such a warrant were issued, it would be a dead 

letter outside the United States. Even when no warrant is 

required, American agents must articulate specific facts giving 

them probable cause to undertake a search or seizure in order 

to comply with the Fourth Amendment. Any search that 

American agents conduct must also meet the reasonableness 

requirements of the Fourth Amendment.
546
547

Chapter 19 - 

 

Government Workplace Searches 

19.1 Introduction ............................................................. 547

19.2 The Workplace – Defined ......................................... 548

19.3 Fourth Amendment Searches .................................. 549

19.3.1 Reasonable Expectation of Privacy (REP)............. 550

19.4 Searches by Government Supervisors ..................... 557

19.4.1 Searches for Work-Related Purposes .................... 558

19.4.2 Searches for Evidence of Criminal Violations ...... 561

19.4.3 Dual-Purpose Searches .......................................... 562

_______________________________________________________ 

19.1 Introduction 

There are a variety of reasons why a government supervisor 

might look in a government employee’s workplace. A 

supervisor might wish to locate a needed file or document, 

discover whether the employee is misusing government 

property such as a government- owned computer, or look for

evidence of a crime such as using the internet to download 

child pornography. 

Is it a “search” under the Fourth Amendment when a 

government supervisor looks in an employee’s workplace? 

Does the government employee have a reasonable expectation 

of privacy (REP) in the office, desk, computer, and/or filing 

cabinet? If REP exists, what standards must a supervisor 

follow to lawfully conduct a warrantless search of those areas? 

Is probable cause required, or is a search permitted on some 

lesser standard of suspicion? While the Supreme Court 

addressed some of these questions in O’Connor v. Ortega, 480 
548

U.S. 709 (1987), it has fallen to lower courts to address many 

others. 

As a government supervisor, when considering the search of a 

government employee’s workplace, consider using this twopart analysis to simplify the process. First, determine whether 

the employee has REP in the area or item to be searched. 

Second, if REP does exist, determine if a search would be 

reasonable under the totality of the circumstances. Before 

turning to those issues, however, it is necessary to first define 

exactly what is meant by the term “workplace.” 

19.2 The Workplace – Defined 

“Workplace” as defined in O’Connor includes those areas and 

items that are related to work and are generally within the 

employer’s control, including offices, desks, filing cabinets, 

computers, and government vehicles. However, not everything 

found within the business address can be considered part of 

the workplace. As a general rule, a government employee has 

REP in personal belongings, such as closed personal luggage, 

a handbag, or a briefcase, even when in the “workplace.” A 

public employee’s private property may be considered a part of 

the workplace when the employee is using the personallyowned property as part of the workplace. 

In the Seventh Circuit Court of Appeals case of Gossmeyer v. 

McDonald, 128 F.3d 481 (7th Cir. 1997), Gossmeyer was 

employed by the Illinois Department of Children and Family 

Services (DCFS) as a Child Protective Investigator. Her 

position required her to investigate instances of child neglect 

and abuse, and to photograph evidence for use in court 

proceedings. Because of a lack of storage space, Gossmeyer, at 

her own expense, purchased two storage cabinets in which she 

kept photographs, photographic equipment, files, documents, 

and other various items. In response to a tip that Gossmeyer 

had pornographic pictures in these cabinets, IG agents 
549

conducted a warrantless search of Gossmeyer’s office, storage 

cabinets, and desk. Gossmeyer asserted that the storage 

cabinets she had personally bought were not part of the

“workplace.” The court refused to find an expectation of 

privacy in the cabinets simply because Gossmeyer bought 

them herself. As noted by the court: “The cabinets were not 

personal containers which just happened to be in the 

workplace; they were containers purchased by Gossmeyer 

primarily for the storage of work-related materials. These 

items were part of the ‘workplace,’ not part of Gossmeyer’s 

personal domain.”

Many years after O’Connor, in 2015, a Michigan state court 

judge challenged local authorities’ search of a personal locked 

safe within her office. James v. Hampton, 592 F. App’x 449 

(6th Cir. 2015). The Sixth Circuit concluded that the judge had 

a reasonable expectation of privacy in both her office and the 

personal safe. The court reasoned that although the judge’s 

office was clearly part of her workplace as described in 

O’Connor, the safe was more similar to a personal piece of 

closed luggage, and not within the employer’s control. The safe 

was used for personal storage, not work-related materials. 

19.3 Fourth Amendment Searches 

There are two tests applied to determine whether a Fourth 

Amendment “search” has occurred. They are derived from two 

Supreme Court cases, Katz v. United States, 389 U.S. 347 

(1967), and United States v. Jones, 565 U.S. 400 (2012).

The Jones Supreme Court held that a physical intrusion by the 

government into a constitutionally protected area for the 

purpose of gathering information constitutes a “search” under 

the Fourth Amendment. This is sometimes described as the 

common law trespass test. Unfortunately, there is a lack of 

caselaw on how this test might be applied to government 

workplaces. Therefore, an analysis of government workplace 
550

searches requires a more detailed understanding of the other 

test for a Fourth Amendment “search.” 

 

The more common test applied to government workplace 

searches is the reasonable expectation of privacy test from 

Katz v. United States. In Katz, the Supreme Court held that a 

Fourth Amendment “search” occurs when the “government” 

intrudes upon an individual’s REP. Two concepts about this 

definition are important in the government workplace search 

context. First, the term “government” does not apply only to 

law enforcement. Instead, the Fourth Amendment acts as a 

restraint on the entire government. The Supreme Court has 

never limited the Fourth Amendment’s prohibition on 

unreasonable searches and seizures to operations conducted 

by law enforcement. If an employee has a reasonable 

expectation of privacy in his workplace, then an intrusion into 

that area qualifies as a “search” even when the government 

acts simply as employer. Second, “motive” is not a component 

of the definition of “search.” An intrusion into a workplace REP 

is a “search” even when it is not a quest for criminal evidence. 

19.3.1 Reasonable Expectation of Privacy (REP) 

As with all Fourth Amendment analysis, the first step is to 

determine whether the government employee has REP in that 

area or item. REP exists when (1) an individual exhibits an 

actual expectation of privacy, and (2) that expectation is one 

that society is prepared to recognize as being objectively 

reasonable. Katz v. United States. This analysis must be 

specific to the area or item to be searched. REP may exist in a 

desk drawer, a file cabinet, or a computer even though there is 

no REP in the office itself. If there is no REP, a workplace 

intrusion is not controlled by the Fourth Amendment, 

regardless of its nature and scope. 

Government employees can, and often do, establish REP in all 

or part of their government offices, desks, computers, and 
551

filing cabinets. A cursory glance into any government office 

will show that individual government employees typically 

expect some form of privacy based on the intermingling of their 

personal and professional lives (e.g., pictures of kids on desks 

and diplomas on walls). However, a government employee’s 

REP is limited by the operational realities of the workplace. 

Whether an employee has REP must be addressed on a caseby-case basis.

REP does not turn on the nature of the property interest in the 

searched area or item, but instead on the reasonableness of the 

employee’s privacy expectation. Government ownership of the 

property to be searched (e.g., a government-owned desk or 

computer assigned to a government employee) is an important 

consideration; but does not, standing alone, mean that there is 

no REP. Courts consider a variety of factors when determining 

whether a government employee has REP in the workplace. 

Among the most important are the following: 

a. Prior Notice to the Employee (Legitimate 

Regulation) 

Prior notice, such as signs, personnel policies, and computer 

banners, advising government employees that their employer 

has retained rights to access or inspection, can eliminate REP 

in the workplace. Conversely, the absence of such notice is a 

factor supporting REP. In the Fourth Circuit Court of Appeals 

case of United States v. Simons, 206 F.3d 392 (4th Cir. 2000), 

Simons worked for the Foreign Bureau of Information Services 

(FBIS), a division of the Central Intelligence Agency. FBIS had 

an Internet usage policy that (1) specifically prohibited 

accessing unlawful material, (2) prohibited use of the Internet 

for anything other than official business, and (3) noted that 

FBIS would “periodically audit, inspect, and/or monitor the 

user’s Internet access as deemed appropriate.” When a 

keyword search indicated that Simons had been visiting 

numerous illicit web sites from his government computer, 
552

multiple searches of his hard drive were conducted from a 

remote location, which resulted in the discovery of child 

pornography. The court held that in light of the FBIS Internet 

policy, Simons did not have a legitimate expectation of privacy 

in the record or fruits of his Internet use. Through its 

language, this policy placed employees on notice that they 

could not reasonably expect that their Internet activity would 

be private. 

In the Seventh Circuit Court of Appeals case of Muick v. 

Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002), the court 

noted that it was possible to have REP in employer-owned 

equipment furnished to an employee for use in the workplace. 

For example, if the employer equips the employee’s office with 

a safe or file cabinet or other receptacle in which to keep his 

private papers, he can assume that the contents of the safe are 

private. Muick was employed by Glenayre at the time of his 

arrest for receiving and possessing child pornography on the 

laptop computer furnished to him by Glenayre. Glenayre had 

announced that it could inspect the laptops that it furnished 

for the use of its employees. This notice destroyed any REP 

that Muick might have had. As stated by the court: 

The laptops were Glenayre’s property and it could 

attach whatever conditions to their use it wanted. 

They didn’t have to be reasonable conditions; but 

the abuse of access to workplace computers is so 

common (workers being prone to use them as 

media of gossip, titillation, and other 

entertainment and distraction) that reserving a 

right of inspection is so far from being 

unreasonable that the failure to do so might well 

be thought irresponsible. 

Likewise, a departmental policy which provides, in part, that 

“all departmental vehicles (to include all enclosed containers) 
553

shall be subject to search and inspection ...at any time, day or 

night” can defeat a claim of REP in a government vehicle. 

b. Common Practices and Procedures 

Even in the absence of written policies and procedures, actual 

office practices and procedures may eliminate REP in the 

workplace. An employer who actually conducts searches or 

inspections dispels in advance any expectations of privacy. 

Conversely, even when written policies and procedures exist, 

failure to implement them may permit a government employee 

to establish REP in an area where one would otherwise not 

exist. For example, in the Third Circuit Court of Appeals case 

of United States v. Speights, 557 F.2d 362 (3rd Cir. 1977), 

Speights was a police officer who retained a locker at his police 

headquarters, secured by both a personal lock and a lock that 

had been issued by the department. There were no regulations 

that addressed the issue of personal locks on the police lockers, 

nor was there any regulation or notice that the lockers could 

be searched. There was also no regulation as to what a police 

officer might keep in the locker. Upon receiving information 

that Speights had a sawed- off shotgun in his locker, 

supervisors opened the locker with a master key (for the policeissued lock) and bolt cutters (for Speights’ personal lock). They 

recovered a sawed-off shotgun during the search, and Speights 

was later convicted of illegally possessing the weapon. The 

court held that in the absence of regulations, Speights had 

REP in the locker that could be defeated only if the police 

department had a practice of opening lockers with private 

locks without the consent of the user. While there had been 

scattered instances of inspections of the lockers for cleanliness 

(3-4 in 12 years), there was insufficient evidence to conclude 

that the police department practice negated Speights’ REP. 

Other federal courts in analogous cases have reached similar 

conclusions. The search of a locker maintained by an employee 

of the United States Mint was upheld because, among other 
554

things, the locker was “regularly inspected by the Mint 

security guards for sanitation purposes.” No reasonable 

expectation of privacy could be expected in an office or 

credenza due to “extremely tight security procedures,” to 

include frequent scheduled and random searches by security 

guards. In each of these cases, the courts relied on specific 

regulations and practices in finding that an expectation of 

privacy was not reasonable. 

c. Openness and Accessibility 

There is no REP in areas that are, by their very nature, “open” 

and “public.” REP may exist in a private space (such as a desk) 

within an otherwise public space (such as a government 

building). REP in an item or area is more likely to exist when 

that item or area is given over to an employee’s exclusive use. 

Locking office doors and the use of passwords to restrict an 

employer’s access to computer files is evidence of the 

employee’s subjective expectation of privacy. 

The more accessible the item or area is to others, the less likely 

that REP exists. Offices that are continually entered by fellow 

employees and other visitors during the workday for 

conferences, consultations, and other work-related visits may 

be so open to fellow employees or the public that no expectation 

of privacy is reasonable. Nevertheless, the fact that others may 

be permitted access to an employee’s office, desk, computer, or 

filing cabinet does not, by itself, automatically destroy REP. 

Privacy does not require solitude. The existence of a master 

key, or an employee’s failure to consistently shut and lock an 

office door, does not automatically sacrifice any expectation of 

privacy in that area. 

The Second Circuit Court of Appeals case of Leventhal v. 

Knapek, 266 F.3d 64 (2nd Cir. 2001), illustrates how the 

realities of the workplace can result in a finding that REP does 

exist. Leventhal had a private tax preparation business. In 
555

running the business, he violated agency policy by 

impermissibly loading unauthorized software on his 

government computer. He committed a second violation when 

he improperly used agency computer equipment to print 

private tax returns. A warrantless search of his computer in 

response to an anonymous tip uncovered the unauthorized 

software. After disciplinary actions were completed, Leventhal 

filed suit alleging the warrantless search of his computer was 

a Fourth Amendment violation. In finding that he had REP in 

the computer, the court noted:

Leventhal occupied a private office with a door. He 

had exclusive use of the desk, filing cabinet, and 

computer in his office. Leventhal did not share use 

of his computer with other employees in the 

Accounting Bureau nor was there evidence that 

visitors or the public had access to his computer.

While support personnel may have had access to Leventhal’s 

computer at all times, “there was no evidence that these 

searches were frequent, widespread, or extensive enough to 

constitute an atmosphere so open to fellow employees or the 

public that no expectation of privacy is reasonable.”

d. The Position of the Employee

REP is less likely for jobs with high security requirements. 

REP is less likely in industries that are subjected to pervasive 

regulation to ensure the safety and fitness of its employees. 

REP is less likely in certain forms of public employment even 

with respect to personal searches.

Employees of the United States Mint, for example, should 

expect to be subject to certain routine personal searches when 

they leave the workplace every day. Law enforcement is in this 

special category. The government has the power to regulate 

the conduct of its police officers even when the conduct 
556

involves the exercise of a constitutionally protected right. 

While law enforcement officers do not lose their constitutional 

rights, there is a substantial public interest in ensuring the 

appearance and actuality of police integrity. This interest in 

police integrity may justify some intrusions on the privacy of 

police officers which the Fourth Amendment would not 

otherwise tolerate. 

e. Waiver of Rights / Consent 

Government employees may actually waive their expectation 

of privacy as a precondition of receiving a certain benefit from 

their employer such as lockers, government vehicles, or 

computers. Employees are often required to sign forms 

acknowledging inspection and search policies, waiving any 

objections, and consenting to those policies. In the Sixth 

Circuit Court of Appeals case of American Postal Workers 

Union v. United States Postal Service, 871 F.2d 556 (6th Cir. 

1989), postal employees were eligible to receive personal 

lockers at their postal facility. Before being allowed to do so, 

however, each employee had to sign a waiver that noted the 

locker was “subject to inspection at any time by authorized 

personnel.” The administrative manual of the Postal Services 

noted that all property provided by the Postal Service was “at 

all times subject to examination and inspection by duly 

authorized postal officials in the discharge of their official 

duties.” Finally, the collective bargaining agreement for these 

employees “provided for random inspection of lockers under 

specified circumstances.” In light of the clearly expressed 

provisions permitting random and unannounced locker 

inspections under the conditions described above, there was no 

REP in the lockers. 

REP exists in the workplace when the employee has a 

subjective expectation of privacy that is objectively reasonable, 

based on the totality of the circumstances (especially those 

discussed above). 
557

19.4 Searches by Government Supervisors 

Even though there is a strong preference that searches be 

performed pursuant to warrants, courts have recognized that 

in certain special situations, the requirement to obtain a 

warrant is impractical. Such is the case with public employers 

who find themselves in a somewhat unique position. On the 

one hand, there is the obligation to follow the mandates of the 

Fourth Amendment; on the other is the responsibility for 

ensuring the efficient and proper operation of the department 

or agency. In cases involving searches conducted by a 

government supervisor, courts balance the invasion of the 

employees’ REP against the government’s need for 

supervision, control, and the efficient operation of the 

workplace. As noted by the Supreme Court in O’Connor: 

Employers and supervisors are focused primarily 

on the need to complete the government agency’s 

work in a prompt and efficient manner. An 

employer may have need for correspondence, or a 

file or report available only in an employee’s office 

while the employee is away from the office. Or ... 

employers may need to safeguard or identify state 

property or records in an office in connection with 

a pending investigation into suspected employee 

misfeasance. In our view, requiring an employer to 

obtain a warrant whenever the employer wished 

to enter an employee’s office, desk, or file cabinets 

for a work-related purpose would seriously disrupt 

the routine conduct of business and would be 

unduly burdensome. Imposing unwieldy warrant 

procedures in such cases upon supervisors, who 

would otherwise have no reason to be familiar 

with such procedures, is simply unreasonable. 

For public employers, there is an exception to the probable 

cause and warrant requirements. In O’Connor, the Supreme 
558

Court outlined two basic categories of workplace searches: (1) 

searches for work-related purposes (either non-investigatory 

or for the purpose of investigating workplace misconduct), and 

(2) searches for evidence of criminal violations. Special needs, 

beyond the normal need for law enforcement, make the 

probable cause requirement impracticable for legitimate workrelated, non-investigatory intrusions as well as for 

investigations of work-related misconduct. Even though not a 

component of the definition of “search,” motive is an essential 

factor in determining the reasonableness of a government 

workplace intrusion.

19.4.1 Searches for Work-Related Purposes

For the probable cause and warrant exception to apply, the 

search must be work-related. This element limits the 

exception to circumstances in which government supervisors 

who conduct the search act in their capacity as employers, 

rather than law enforcers. Work-related intrusions by public 

employers are justified by the need for the efficient and proper 

operation of the workplace. Work-related searches typically 

fall within one of two similar, but distinct, circumstances.

a. Non-Investigatory Purpose

A warrantless search of a government employee’s workplace 

may be conducted for a work-related, non-investigatory 

purpose, such as retrieving a needed file. Operational 

efficiency would suffer if employers were required to have 

probable cause before they entered an employee’s desk for the 

purpose of finding a file, a piece of office correspondence, a 

book, or a compact disk. For this reason, public employers 

must be given wide latitude to enter employee offices for workrelated, non-investigatory reasons.

b. Work-Related Misconduct Investigations
559

A warrantless search of an employee’s workspace may be 

performed during an investigation into allegations of workrelated misconduct, such as improper computer usage. As 

noted by the Supreme Court in O’Connor: 

Public employers have an interest in ensuring that 

their agencies operate in an effective and efficient 

manner, and the work of these agencies inevitably 

suffers from the inefficiency, incompetence, 

mismanagement, or other work-related 

misfeasance of its employees. Indeed, in many 

cases, public employees are entrusted with 

tremendous responsibility, and the consequences 

of their misconduct or incompetence to both the 

agency and the public interest can be severe.... In 

our view, therefore, a probable cause requirement 

for searches of the type at issue here would impose 

intolerable burdens on public employers. The

delay in correcting the employee misconduct 

caused by the need for probable cause rather than 

reasonable suspicion will be translated into 

tangible and often irreparable damage to the 

agency’s work, and ultimately to the public 

interest. 

c. Reasonable intrusions 

In either of the above situations, the search must be 

“reasonable” based on the totality of the circumstances. 

Generally, a government supervisor’s search of an employee’s 

REP is reasonable when the measures used are reasonably 

related to the objectives of the search and not excessively 

intrusive in light of its purpose. Under this standard, the 

search must meet two requirements: the search must be: (1) 

justified at its inception and (2) permissible in scope. This is 

the equivalent of the “reasonable suspicion” standard outlined 

by the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).
560

d. Justified at the Inception

A warrantless search of an employee’s REP for a noninvestigatory, work-related purpose, such as to retrieve a 

needed file, will be “justified at its inception” when the 

supervisor reasonably believes that the sought object is located 

there. A search of a government employee’s REP for evidence 

of work-related misconduct will be “justified at its inception” 

when there are reasonable grounds for suspecting that the 

search will turn up evidence of such misconduct. A supervisor 

must have an articulable reason (or reasons) for believing that 

work-related materials or evidence of work-related misconduct 

are located in the place to be searched.

e. Permissible In Scope

A search is “permissible in scope” when the measures used are 

reasonably related to the objectives of the search and not 

excessively intrusive in light of the nature of the misconduct. 

This means that the search is limited to only those areas where 

the item sought is reasonably expected to be located. For 

example, it is reasonable to look in a desk drawer for a 

highlighter. It is not “permissible in scope” to boot up the 

computer when looking for a highlighter.

f. Plain View Seizures

The plain view doctrine allows seizure of evidence discovered 

while lawfully inside an REP area. There are three 

requirements for a permissible plain view seizure of evidence. 

First, the officer must lawfully be in a position to observe the 

item; second, the incriminating nature of the item must be 

immediately apparent; and third, the officer must have a 

lawful right of access to the object itself. See the Fourth 

Amendment chapter of this book for a detailed explanation of 

the plain view seizure doctrine.
561

Criminal evidence discovered during a government workplace 

search for a work-related purpose will be admissible as a plain 

view seizure so long as the search meets the criteria discussed 

above. 

19.4.2 Searches for Evidence of Criminal Violations 

Although in O’Connor the Supreme Court specifically declined 

to address the appropriate standard for searching for evidence 

in government workplaces, several lower courts have done so 

when an employee is being investigated for criminal 

misconduct that does not violate some workforce policy. They 

have found that the rationale for the lesser burden O’Connor 

places on public employers is not applicable in a purely 

criminal investigation. Where the sole motivation behind a 

workplace search is to uncover evidence of criminal 

wrongdoing, the appropriate standard is probable cause. 

The line between a work-related search and a search for 

criminal evidence may be clear in theory, but is often blurry in 

fact. This is especially true when the personnel conducting the 

search are members of an agency or department that is 

undeniably in the business of investigating the violation of the 

criminal laws. The mere involvement of law enforcement 

personnel will not automatically convert a work-related search 

into a criminal investigation. An agent’s dual role as an 

investigator of workplace misfeasance and criminal activity 

does not invalidate the otherwise legitimate work-related 

workplace search. On the other hand, when a supervisor’s role 

is no longer that of a manager of an office but that of a criminal 

investigator for the government and when the purpose is no 

longer to preserve efficiency in the office but to prepare a 

criminal prosecution against the employee, searches and 

seizures by the supervisor or by other government agents are 

governed by the Fourth Amendment admonition that a 

warrant be obtained in the absence of exigent circumstances. 
562

In determining whether the investigation is criminal in 

nature, the proper focus is not on the positions or capabilities 

of the persons conducting the search, but rather on the reason 

for the search itself. Factors considered by courts in making 

this determination include whether a criminal investigation 

has been opened, whether a workforce policy was violated, and 

the position of the individual who conducted the search. 

19.4.3 Dual-Purpose Searches 

There are situations in which a government employee’s 

misconduct might also be criminal. For example, a government 

employee may be receiving and downloading child 

pornography on a government computer for personal use. This 

conduct would constitute a violation of workforce policy rules 

on appropriate government computer/Internet usage and is 

clearly criminal in nature. In such a situation, a public 

employer has two purposes in conducting a search: (1) to 

uncover evidence of the administrative violation, and (2) to 

uncover potential criminal evidence. 

When a government supervisor receives information that an 

activity is occurring that violates both workforce regulations 

and criminal statutes, what standard must be followed when 

searching the employee’s workplace? Because of the workrelated misconduct that is occurring, will the lesser standard 

of O’Connor suffice? Or, because of the criminal nature of the 

allegations, must the traditional probable cause and warrant

requirements be met? The courts have adopted fairly generous 

interpretations of O’Connor when confronted with mixedmotive searches. 

Even assuming that the dominant purpose of the warrantless 

search is to acquire evidence of criminal activity, the search

remains within the O’Connor exception to the probable cause 

and warrant requirement. The government does not lose the 

capacity and interests of an employer - its special need for the 
563

efficient and proper operation of the workplace - merely 

because the evidence obtained is also evidence of a crime.
564

 
565

Chapter 20 - 

 

Natural Resource Law 

20.1 Introduction to Natural Resource Law -- What 

Follows? ............................................................................... 565

20.1.1 Studying the Statutes ............................................566

20.1.2 Jurisdiction .............................................................567

20.1.3 Criminal Intent.......................................................567

20.1.4 Theories of Liability ...............................................567

20.2 The Statutes: Preserving Lessons From the Past ... 568

20.2.1 Archeological Resources Protection Act (ARPA)...569

20.2.2 Paleontological Resources Protection Act (PRPA) 574

20.2.3 Native American Graves Protection and 

Repatriation Act (NAGPRA) .................................................579

20.3 Ensuring the Continuing Abundance of Fish, Wildlife, 

and Wild Plants ................................................................... 583

20.3.1 Lacey Act.................................................................583

20.3.2 Migratory Bird Treaty Act (MBTA).......................589

20.4 Ensuring the Continued Survival of Certain Animals 

and Plants ............................................................................ 592

20.4.1 Endangered Species Act (ESA)..............................593

20.4.2 Marine Mammal Protection Act (MMPA).............598

20.4.3 Bald and Golden Eagle Protection Act (BGEPA)..603

_______________________________________________________

20.1 Introduction to Natural Resource Law -- What Follows? 

This course is intended for the Land Management Police 

Training program. It consists of a collection of criminal 

statutes that protect some of our most precious natural 

resources. The statutes are divided into three groups. 
566

We put the first group of statutes under “Preserving Lessons 

from the Past.” The Archaeological Resources Protection Act 

was intended to preserve archeological resources that give us 

an understanding about how we once lived. The 

Paleontological Resources Protection Act protects fossils that 

give us an understanding of a much more ancient life. Finally, 

the Native American Graves Repatriation Act prohibits the 

commercial exploitation of Native American remains and 

cultural items. 

We put the second group of statutes under “Ensuring the 

Continuing Abundance of Wild Animals and Plants.” The 

Lacey Act was championed by Congressmen John Lacey in 

1900. Congressman Lacey had seen the decimation of the 

American bison and other living creatures. The Lacey Act was 

intended to protect wild animals, fish, and plants from 

commercial exploitation. Much the same way, the Migratory 

Bird Treaty Act protects migrating birds like wild geese and 

ducks. 

The third group is under “Ensuring the Continued Survival of 

Certain Animals and Plants.” The Endangered Species Act 

protects animals and plants from extinction. The Marine 

Mammal Protection Act insures the continued abundance of 

whales, dolphins, and other marine mammals. The Bald and 

Golden Eagle Protection Act is a success story. It brought back 

our nation’s symbol from the brink of extinction.

20.1.1 Studying the Statutes

Each statute is divided into five parts; specifically, 1) 

Prohibited Acts; 2) Elements; 3) Explanation of Terms; 4) 

Sample Charges; and 5) Penalty. We will see some overlap. 

The same conduct may violate more than one statute. For 

example, the unlawful taking of a bald eagle may violate not 

only the Bald and Golden Eagle Protection Act, but also the 

Lacey Act and the Migratory Bird Treaty Act. 
567

20.1.2 Jurisdiction

Jurisdiction means power to act. (Refer to the Authority and 

Jurisdiction chapter.) Before a federal court can assume 

jurisdiction over a case, the prosecutor must prove there is a 

federal jurisdictional nexus between the defendant’s conduct 

and the natural resource. There are several. The defendant 

may take the resource from federal land. Another is when 

there is an interstate or foreign commerce connection between 

the defendant’s conduct and the resource. Additionally, some 

of the statutes were enacted pursuant to Congress’s treaty 

powers with foreign nations. 

While a nexus must exist, the prosecutor generally does not 

have to prove that the defendant knew or understood the 

connection. His exclamation, “I did not know that I was on 

federal land!” is generally not a defense. The only exception 

appears to be the Paleontological Resource Protection Act. 

20.1.3 Criminal Intent 

Another common theme is Congress’s obvious desire to protect 

these natural resources. Indeed, it’s the citizens’ responsibility 

to know and follow the law when taking natural resources. 

Most of the statutes only require the defendant’s general 

intent. A general intent criminal statute only requires the 

defendant to be aware of the facts that made his conduct 

illegal, not that he knew his conduct was illegal. For example, 

a hunter may claim, “I thought the bag-limit was four geese 

instead of two.” The issue is whether the defendant knowingly 

possessed more geese than allowed. In short, ignorance of the 

law is not a defense.

20.1.4 Theories of Liability 

Individuals may be prosecuted as may corporations and 
568

partnerships. We call the person who commits the crime the 

perpetrator. Others assisting the perpetrator may also be 

punished. 

An aider and abettor is someone that aids, abets, counsels, or 

commands another in the commission of an offense. The aider 

and abettor must commit some affirmative act for purposes of 

committing the offense. This could be an outfitter that rents a 

boat, gun, and duck decoys to a hunter intending they be used 

to take migratory birds out of season. 

An aider and abettor must have knowledge of the criminal 

venture. Consider someone who unwittingly loans his boat to 

another that uses it to poach game without the owner’s 

knowledge. The owner of the boat is not an aider and abettor 

in the commission of the offense committed by the poacher. 

The crime must be completed under an aiding and abetting 

theory; however, an attempt to commit a crime is punishable. 

An attempt requires proof that the defendant had the specific 

intent to commit the crime and took a substantial step forward 

in its completion. Consider a defendant who intends to poach 

a bear and pays someone for guide services. However, the 

guide is actually an undercover agent for the U.S. Fish and 

Wildlife Service. The defendant can be prosecuted for an 

attempted poaching. This is true even if the agent affects the 

arrest before the bear is taken. The poacher had the specific 

intent to poach the bear and took a substantial step forward in 

doing so. What’s more, impossibility (i.e., that the agent 

stopped the defendant before the bear was taken) is not a 

defense.

20.2 The Statutes: Preserving Lessons From the Past 

Due to the commercial attractiveness of certain antiquities, 

Congress passed laws to protect what was seen as an 

irreplaceable part of our nation’s heritage. In 1979, Congress 
569

passed the Archaeological Resources Protection Act (ARPA) 

with the aim at securing the protection remains of human life, 

which are at least 100 years old and of archaeological interest 

(archaeological resources) for present and future benefit of 

Americans. Congress later passed the Paleontological 

Resources Preservation Act (PRPA) in 2009 to preserve 

fossilized remains that provide information about the history 

of life on our planet. Finally, we will discuss the Native 

American Graves Protection Act (NAGPRA), passed in 1990, 

which prohibits the unauthorized sales of Native American 

human remains and cultural items.

20.2.1 Archeological Resources Protection Act (ARPA)

a. Prohibited Acts

Unlawful Excavation from Public (Federal) or Indian Lands: 

No person may excavate (remove, damage, or otherwise alter 

or deface) any archaeological resource located on public or 

Indian land unless such activity is pursuant to federal or 

Indian law.

Unlawful Sales after Violating Federal Law: No person may 

sell (purchase, exchange, transport, or receive) any 

archaeological resource if it was excavated or removed from 

public or Indian lands in violation of any federal or 

Indian/tribal law.

Unlawful Sales After Violating State Law: No person may sell 

(purchase, exchange, transport, or receive) any archeological 

resource in interstate or foreign commerce in violation of state 

or local law.

b. Elements of ARPA

1. Unlawful Excavation from Public (Federal) and 

Indian Lands: 
570

• That the defendant knowingly excavated (removed, 

damaged, altered, or defaced) an archeological resource; 

• That the archeological resource was located on public or 

Indian land; and,

• That the defendant did so without a permit or in 

violation of any provision of federal or Indian law.

2. Unlawful Sales After Violating Federal Law:

• That the defendant knowingly sold (purchased, 

exchanged, transported, or received) an archaeological 

resource;

• That the archaeological resource was on public or Indian 

lands; and, 

• That its excavation or removal was done in violation of 

any rule or regulation under federal law or Indian/tribal 

law.

3. Unlawful Sales After Violating State Law:

• That the defendant knowingly sold (purchased, 

exchanged, transported, or received) an archeological 

resource;

• That the item was in interstate or foreign commerce; and

• That the item was excavated (removed, sold, purchased, 

exchanged transported, or received) in violation any 

state or local law.
571

c. Explanation of Terms

1. Archeological resource. 

An archeological resource is any material remains of past 

human life or activities which are of archaeological interest, as 

determined under uniform regulations pursuant to this 

chapter ... (and which are) at least 100 years of age. Consider 

the Little Bighorn National Battlefield in Montana. In late 

June 1876, Lieutenant Colonel George Armstrong Custer and 

members of the 7th Calvary were defeated and killed by Sioux, 

Arapaho, and Cheyenne warriors. Bullet casings found on The 

Little Bighorn are likely “material remains of past human life 

or activities which are of archeological interest ... and at least 

100 years of age.” Why? An archeologist would likely state 

that the casings mark the movements and battle lines of the 

people who fought and died there. Archeologists and 

historians know that the Springfield Trapdoor carbine in 

caliber 45/55 was the weapon issued to troopers of the 7th 

Calvary. Native American warriors, on the other hand, carried 

an assortment of firearms of different calibers. As a result, 

45/70 shell casings likely mark the positions and possibly the 

last stand of a member of the 7th Calvary. Other casings likely 

mark the positions of Native American warriors.

2. Archaeological Interest. 

The words “of archaeological interest” means capable of 

providing scientific or humanistic understandings of past 

human behavior, cultural adaptation, and related topics. 

Archeologists and historian make those decisions through the 

application of scientific or scholarly techniques. Such 

techniques include controlled observation, contextual 

measurement, controlled collection, analysis, interpretation, 

and explanation.
572

d. Defendant’s Intent:

ARPA is a general intent crime. The prosecutor must prove 

that the defendant was aware of the facts that made his 

conduct illegal, not that the defendant knew his acts were 

illegal. A defendant who pulls a rusty old rifle out of the 

ground at the Little Bighorn has likely “removed” an 

archeological resource in violation of ARPA. No damage need 

occur to the rifle. What’s more, his exclamation, “I didn’t know 

it was an archeological resource!” is no excuse. By 

intentionally pulling the rifle out of the ground he was aware 

of the facts that made his conduct illegal. Excavation and 

removal must be in accordance with authorized tribal permits 

and federal law. What’s more, the onus is on the citizen to 

know and follow the regulations. “I didn’t know I needed a 

permit” is not a defense.

e. Exceptions: 

The following does not violate ARPA: 

• Items lawfully possessed before October 31, 1979 (the 

date of the statute);

• Paleontological specimens not found in an 

archaeological context;

• Coins, bullets, and unworked minerals and rocks ... 

unless found in direct physical relationship with another 

archaeological resource; and

• Arrowheads found on the surface of the ground. 

f. Jurisdictional Nexus: 

A federal court may assume jurisdiction over an ARPA 

violation that occurs on public or Indian lands. Another 
573

federal nexus is for the resource to be moved in interstate or 

foreign commerce. Public lands, for ARPA purposes, includes 

land owned and administered by the United States. Indian 

land could be one of the many tribal lands in the United States. 

Interstate commerce or foreign commerce means that the 

resource was moved between the states, territories, or 

possessions of the United States or from one country to 

another. An interstate commerce nexus could be a situation 

where the defendant excavated archeological resources while 

violating only Montana’s state trespassing laws but then 

moved the items out of state to Georgia. Foreign commerce 

means between any part of the United States and another 

country. It is not necessary for the defendant to know or 

understand the federal nexus. 

g. Federal or Indian Law

Excavation and removal must be in accordance with 

authorized tribal permits and federal law. The onus is on the 

citizen to know and follow the regulations. 

h. Sample Charge

Excavation from Federal/Indian Land: That the defendant did, 

unlawfully, on or about _____ knowingly excavate 

archeological resources (mini balls and cannon balls) located 

on public land (the Petersburg National Battlefield in 

Virginia) without a permit.

Unlawful Sales after Violating Federal Law: That the

defendant did, unlawfully, on or about _____ knowingly sell 

archeological resources (Civil War cannon balls and mini balls) 

that were excavated and removed from public land (the 

Petersburg National Battlefield in Virginia) without a permit 

in violation of federal law.

Unlawful Sales after Violating State Law: That the defendant 
574

did, unlawfully, on or about __ knowingly transport in 

interstate commerce (from Virginia to Georgia) archeological 

resources (Civil War mini balls and cannon balls) taken from 

private land in violation of Virginia’s state’s trespassing laws.

i. Penalties

Anyone who knowingly violates the statute shall be fined not 

more than $10,000 or imprisoned not more than one year, or 

both. Felony penalties are authorized depending on the value

of the resource. If the commercial or archaeological value of 

the resources involved and the cost of restoring it exceeds the 

sum of $500 such person shall be fined not more than $20,000 

or imprisoned not more than two years, or both. In the case of 

a second violation and conviction such person shall be fined not 

more than $100,000, or imprisoned not more than five years, 

or both. 

20.2.2 Paleontological Resources Protection Act (PRPA)

a. Prohibited Acts

Unlawful Excavation from Federal Lands: It is unlawful to 

excavate (remove, damage, or otherwise alter or deface) any 

paleontological resources located on federal land without a 

lawful permit.

Unlawful Exchange After Violating Federal Law. It is 

unlawful to exchange (transport, export, or receive) any 

paleontological resource if the person knew or should have 

known it had been excavated or removed from federal land 

unlawfully. 

Unlawful Sales from Federal Land. It is unlawful to sell or 

purchase any paleontological resource if the person knew or 

should have known such resource to have been excavated 

(removed, sold, purchased, exchanged, transported, or 
575

received) from federal land.

False Labeling. It is unlawful to make or submit any false 

record (account, or label for, or any false identification of) any 

paleontological resource excavated or removed from federal 

land.

b. Elements:

1. Unlawful Excavation from Federal Lands:

• That the defendant knowingly excavated (removed, 

damaged, altered or defaced) a paleontological resource; 

• That the resource was on federal land; and 

• That the defendant did so in violation of any federal law.

2. Unlawful Exchanges After Violating Federal Law. 

• That the defendant knowingly exchanged (transported, 

exported, or received) a paleontological resource; and,

• That the defendant knew or should have known such 

resource to have been excavated or removed from federal 

land in violation of any federal law.

3. Unlawful Sales from Federal Land:

• That the defendant sold (or purchased) a paleontological 

resource; and,

• That he knew or should have known such resource was 

excavated, removed, sold, purchased, exchanged, 

transported, or received from federal land.
576

4. False Labeling.

• That the defendant made or submitted a false record 

(account, or label of, or made any false identification of) 

a paleontological resource; and

• That the said resource was excavated (or removed) from 

federal land.

c. Explanation of Terms:

Paleontological Resource: Paleontological resource (paleo 

resource for short) means any fossilized remains, traces, or 

imprints of organisms, preserved in or on the earth’s crust, 

that are of paleontological interest and provide information 

about the history of life on earth. However, the following are 

not paleo resources:

• Any materials associated with an archaeological 

resource; or

• Any cultural item as defined under the Native American 

Graves Repatriation Act.

d. Exceptions to PRPA: 

The following does not violate PRPA: 

Casual Collecting. Causal collecting means the collecting of 

reasonable amounts of fossilized common invertebrates and 

plants for non-commercial personal use. The collection could 

be by surface collection or the use of non-powered hand tools 

that result only in the negligible disturbance to the earth’s 

surface. Collectors must follow regulations. 

Resources Possessed Prior to the Act: The statute does not 

apply to paleo resources in one’s lawful possession prior to 
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March 30, 2009 the date of the Act. 

e. Federal Jurisdictional Nexus. 

Note that federal jurisdiction is limited to cases where the 

violation occurs on federal land. PRPA does not apply on 

Indian lands nor in cases where the defendant takes the 

resource in violation of state law even when there is an 

interstate commerce nexus. (Distinguish ARPA). 

f. The Defendant’s Intent. 

While a federal nexus must exist, the prosecutor is generally 

not required to prove that the defendant knew or understood 

it. PRPA appears to be the exception. For mere trafficking (no 

money is involved) the government must prove that the 

defendant knew or should have known that the resource was 

unlawfully removed from federal land. Congress may have 

been protecting some unwitting person coming into possession 

of a fossil. But apparently Congress had less sympathy for 

defendants in the business of selling paleo resources. In that 

case, the government need only prove that the defendant knew 

or should have known that the resource came from federal 

land, not necessarily that the defendant knew it was removed 

unlawfully. 

g. Permits. 

Excavation and removal must be in accordance with 

authorized permits and federal law. 

h. Sample Charge:

1. Unauthorized Excavation From Federal Lands: 

That the defendant did unlawfully on or about _____ 

knowingly excavate without a permit one fossilized Theropod 
578

track (more commonly known as a three-toed dinosaur track) 

a paleontological resource located on the Manti-La Sal 

National Forest in Utah, federal land.

2. Unauthorized Trafficking After Violating Federal 

Law: 

That the defendant did, unlawfully, on or about _____ 

knowingly receive a fossilized Theropod track (more commonly 

known as a three-toed dinosaur track) a paleontological 

resource taken from the Manti-La Sal National Forest 

knowing or when he should have known that it was excavated 

and removed from federal land unlawfully.

3. Unauthorized Sales: 

That the defendant did on or about _____ knowingly sell a 

fossilized Theropod track which was taken unlawfully from the 

Manti-La Sal National Forest and while the defendant knew 

it was taken from federal land.

4. False labeling. 

That the defendant did on or about ___ make a false record of 

dinosaur tracks, bones, and teeth by purporting that these 

paleontological resources were taken from private property 

prior to March 30, 2009, the date of the Paleontological 

Resource Act, when in fact they were taken from the Dinosaur 

National Park in the year 2021. 

 

i. Penalties. 

A person who knowingly violates or counsels another to violate 

one of the Prohibited Acts shall be imprisoned not more than 

five years; but if the sum of the cost of restoration is less than 

$500, imprisoned not more than two years. 
579

20.2.3 Native American Graves Protection and 

Repatriation Act (NAGPRA) 

a. Prohibited Acts:

Sales of Native American Human Remains Without the Right 

of Possession. A person may not sell (purchase, use for profit, 

or transport for sale or profit) the human remains of a Native 

American without the right of possession as provided in 

NAGPRA. 

Sales of Native American Cultural Items in Violation of 

NAGPRA. A person may not knowingly sell (purchase, use for 

profit, or transport for sale or profit) any Native American 

cultural item obtained in violation of NAGPRA.

b. Elements:

1. Sales of Native American Human Remains 

Without the Right of Possession. 

• That the defendant knowingly sold (purchased, used for 

profit, or transported for sale or profit) human remains;

• That the human remains were of a Native American; 

and,

• That the defendant did not have the right of possession 

to those remains as provided in NAGPRA.

2. Sales of Native American Cultural Items in 

Violation of NAGPRA.

• That the defendant knowingly sold (purchased, used for 

profit, or transported for sale or profit) certain items; 

• That the said items were Native American cultural 
580

items; and, 

• That said items were obtained without the right of 

possession in violation of NAGPRA. 

c. Explanation of Terms: 

1. Native American. 

The term “Native American” means relating to a tribe, people, 

or culture that is indigenous to the United States. NAGPRA 

applies to both Native Americans and Native Hawaiians. 

State v. Taylor, 126 Haw. 05 (SupCt of Hi 2011) (citing 25 

U.S.C. § 3001). “Native Hawaiian” means any individual who 

is a descendant of the aboriginal people who, prior to 1778, 

occupied and exercised sovereignty in the area that now 

constitutes Hawaii. 

2. Native American Human Remains and Native 

American Cultural Items. 

The statute protects Native American human remains and 

Native American cultural items. Cultural items consist of 

associated funerary, sacred objects, and cultural patrimony. 

• Funerary objects are objects placed with human remains 

at the time of death or later. 

• Sacred objects are specific ceremonial objects which are 

needed by Native American religious leaders for 

practicing traditional Native American religion. 

• Cultural patrimony is an object having ongoing 

historical or cultural importance to the Native American 

group rather than one Native American individual. 

3. Right of Possession: 
581

“Right of possession” generally means the buyer obtained the 

remains or cultural items from someone having “authority of 

alienation,” meaning that the person had the right to sell or 

transfer the item. 

d. Defendant’s Intent. 

NAGPRA requires only general intent. As one case points out 

succinctly, the goal is to eliminate the profit incentive 

perceived to be a motivating force behind the plundering of 

such items. United States v. Kramer, 168 F.3d 1196, 1202 

(10th Cir. 1999). With both human remains and funerary 

objects, such transactions are illegal unless the items have 

been released by someone who has the right to possess them. 

Items are lawfully released when they were excavated, 

exhumed, or otherwise obtained with full knowledge and 

consent of the next of kin or the official governing body of the 

appropriate culturally affiliated Indian tribe or Native 

Hawaiian organization. 

e. Federal Jurisdictional Nexus: 

Note that the federal jurisdictional nexus is different than the 

other statutes. Federal jurisdiction will lie when Native 

American remains and cultural items are (1) in federal 

possession or control; (2) in the possession or control of an 

institution or State or local government receiving federal 

funds; or (3) excavated intentionally or discovered 

inadvertently on federal or tribal lands. See 43 C.F.R. § 10. 

The difference is that NAGPRA is primarily designed to return 

Native American remains and cultural items to their rightful 

descendants. Those having the right of possession may sue 

state museums and other institutions receiving federal 

funding for their return. In short, NAGPRA is largely a civil 

statute. It is designed to reach its goals through civil 

proceedings and administrative mandates; however, criminal 
582

actions are still possible when there is a profit motive behind 

possession of these sacred objects. 

f. ARPA and NAGPRA. 

A violation of NAGPRA could be charged in conjunction with 

ARPA when these remains are taken from public or Indian 

lands. Native American remains and cultural items likely 

“satisfy the definition of an archeological resource. Be 

mindful, however, that a NAGPRA violation also requires 

additional proof that the resource was sold or used for profit, 

not necessarily required for an ARPA violation. 

g. Sample Charge:

That the defendant did, unlawfully, on or about ____ 

knowingly sell Native American human remains excavated 

from the Little Bighorn National Battlefield, federal land, 

without having the right of possession.

That the defendant did, unlawfully, on or about _____ 

knowingly sell associated funerary objects from a Native 

American grave located on the Pine Ridge Indian Reservation, 

tribal land, without the right of possession.

h. Penalties: 

The bulk of NAGPRA is dedicated to repatriation. However, 

the United States Criminal Code was amended to create the 

misdemeanor offense of illegal trafficking in Native American 

human remains and cultural items. The first offense is a 

misdemeanor. A subsequent violation is a felony, with a 

maximum penalty of five years in prison. 
583

20.3 Ensuring the Continuing Abundance of Fish, Wildlife, 

and Wild Plants 

Through the years, Congress was also concerned with the over 

commercialization of our nation’s fish, wildlife and plant 

species. The Lacey act was passed in 1900 and later amended, 

but was originally signed in 1894 due to commercial 

exploitation of plants and animals in Yellowstone National 

Park. Later amendments to the Lacey act added a prohibition 

on invasive species (zebra mussels, Cuban tree frogs, pythons, 

etc) which threaten native species. Certain weaknesses of the 

Lacey Act ultimately led to the passage of the Migratory Bird 

Treaty Act (MBTA) in 1918. The MBTA worked to ensure the 

survival and abundance of listed migratory bird species (50 

C.F.R. § 10.13) and enforce treaties the several other countries 

regarding bird species.

20.3.1 Lacey Act 

a. Prohibited Acts:

Taking in Violation of United States or Indian Law: It is 

unlawful for any person to take (import, export, transport, sell, 

receive, or purchase) any fish or wildlife or plant (F-W-P-) that 

was taken in violation of any law of the United States or in 

violation of any Indian tribal law. 

Transporting After Violating State or Foreign Law. It is 

unlawful for any person to transport (import, export, 

transport, sell, receive, acquire, or purchase) in interstate or 

foreign commerce any F-W-P- that was taken in violation of 

any law (or regulation) of any state or foreign law. 

Unlawful Possession Within the Special Maritime or 

Territorial Jurisdiction. It is unlawful for anyone to possess 

within the special maritime or territorial jurisdiction of the 

United States any F-W-P- that was taken (possessed, 
584

transported, or sold) in violation of any state, foreign, or Indian 

tribal law.

False labeling. It is unlawful for anyone to make or submit 

any false record, account, or label for any F-W-P- which has 

been or is intended to be moved in foreign or interstate 

commerce.

Injurious/Invasive Species. It is unlawful to import into the 

United States (including the District of Columbia, the 

territories of the United States or its possessions) or to ship 

between those geographic areas injurious F-W-P-. 

b. Elements

1. Taking in Violation of United States or Indian 

Law 

• That the defendant knowingly took (imported, exported, 

transported, sold, received, acquired, or purchased) FW-P-; and 

• That defendant did so in violation of any law, treaty or 

regulation of the United States or Indian law.

2. Transporting in Violation of State or Foreign Law:

• That the defendant knowingly transported (imported, 

exported, sold, received, acquired, or purchased) F-W-Pin interstate or foreign commerce; and, 

• That the defendant did so in violation of state or foreign 

law.

3. Possession Within the Special Maritime or 

Territorial Jurisdiction.
585

• That the defendant possessed F-W-P- within the special 

maritime or territorial jurisdiction of the United States; 

and,

• That the F-W-P- was taken (possessed, transported, or 

sold) in violation of any state, foreign, or Indian tribal 

law.

4. False Labeling:

• That the defendant unlawfully made or submitted a 

certain record;

• That the record was false; and,

• That the record was for F-W-P- moved or intended to be 

moved in foreign or interstate commerce.

5. Injurious/Invasive Species:

• That the defendant imported certain F-W-P- into the 

United States (the District of Columbia, U.S. territories, 

or possessions) or shipped between those geographic 

areas certain F-W-P-; and,

• That the F-W-P- was an injurious species.

c. Explanation of Terms

1. Fish, Wildlife and Plants (F-W-P-): 

The Lacey Act, championed by Congressmen John Lacey in 

1900, was originally intended to protect wild animals, fish, and 

plants (F-W-P-) from commercial exploitation. More recently, 

the Act was amended to also make the importation of invasive 

species a crime. People are not only within Lacey’s reach, but 

partnerships, corporations, and even instruments or agents of 
586

federal or state governments can also be prosecuted. Unless 

classified as an injurious species, the Lacey Act protects four 

kinds of living things and usually their remnants; to wit: 

• Fish or Wildlife: This means any wild animal, dead or 

alive, even if born or bred in captivity. It includes their 

parts, eggs, or offspring.

• Plants: This means any wild member of the plant 

kingdom, including roots, seeds, parts, or products. It 

includes trees from either natural or planted forest 

stands. (Excluded are domesticated plants, scientific 

specimens or plants which will be replanted.)

• Prohibited Wildlife Species: This means big wildcats, 

like lions, tigers, leopards, cheetah, jaguar, cougar, or 

hybrids. 

• Wild Animals and Birds: This means any creatures that 

are normally found in a wild state, whether raised in 

captivity.

2. Injurious/Invasive Species: 

This modern addition prohibits the importation of injurious 

non-native species that threaten our natural environment and 

agriculture. Some of the invasive species are listed in the 

statute. They include zebra mussels and big head carp. See 

18 U.S.C. § 42. Others have been added by regulations issued

by the Fish and Wild service.

3. Illegal Guide or Outfitting Services: 

It is an illegal sale of fish or wildlife when, for money or other 

consideration, someone offers or provides guiding or outfitting 

services for the illegal taking of fish or wildlife. It is an illegal 

purchase of fish or wildlife when, for money or other 
587

consideration, a hunter or fisherman obtains guiding or 

outfitting services for the purpose of taking fish or wildlife 

illegally. 

d. Federal Jurisdictional Nexus. 

The defendant could take the F-W-P- in violation of federal or 

Indian tribal law. When on federal land, a federal court may 

also assimilate or adopt the surrounding state law. This could 

be a situation where someone poaches an elk on the Buffalo 

National River in violation of Arkansas’ hunting laws. 

Arkansas state hunting laws essentially become federal law 

through adoption. See 36 C.F.R. section 2.2. Another nexus is 

for the resource to be connected to interstate or foreign 

commerce. For example, the defendant may poach a deer on 

private property in Missouri but move the venison across state 

lines to Illinois. Finally, the defendant may possess the F-WP- on the special maritime or territorial jurisdiction (SMTJ) of 

the United States. This could be a case where the defendant 

poaches a deer in violation of state law, but instead of 

transporting the deer over state lines he transports, or 

otherwise possesses the deer on the exclusive or concurrent 

jurisdiction of the United States within the state where it was 

taken. Consider a hunter that poaches a deer on private land 

in violation of North Carolina’s hunting laws. He then brings 

the venison to Marine Corps Base Camp Lejeune and stores 

the venison in his freezer on Tarawa Terrace. Camp Lejeune 

is the exclusive jurisdiction of the United States. (See the 

Authority and Jurisdiction chapter.)

e. Sample Charge:

1. Taking in Violation of United States or Indian 

Law: 

That the defendant did, unlawfully, on or about ________ take 

an elk on the Buffalo National River in Arkansas when (1) the 
588

elk was not in season, (2) the defendant did not possess a 

hunting license, and (3) the defendant did not possess an elk 

permit all as required by Arkansas state law and as adopted 

as federal law under 36 C.F.R. § 2.2. 

2. Transporting After Violating State or Foreign 

Law: 

That the ACME Guitar Company did between ___ and ____ 

import ebony wood from Madagascar and rosewood and ebony 

from India in violation of foreign law.

That the defendant did between _____ and ____ unlawfully 

possess the venison of ten white tail deer on Camp Lejeune, 

North Carolina (the special maritime or territorial jurisdiction 

of the United States) when the deer were taken on private 

property in violation of North Carolina hunting laws. 

That the defendant did on or about ______ in Kodiak, Alaska, 

unlawfully place the skull, hide and other parts of a Kodiak 

brown bear in containers labeled “Pink Salmon” and deliver 

them to Federal Express, an interstate mail carrier, for 

delivery to Virginia.

That the defendant did between ____ and ___ unlawfully 

transport from Florida to Georgia one Burmese python, an 

invasive animal as designated by the U.S. Fish and Wildlife 

Service. 

f. Penalties: 

The Lacey Act imposes felony penalties if the defendant 

engages in conduct that involves the sale of wildlife with a 

market value of more than $350 while knowing that it was 

taken in violation of law. Failure to exercise due care in their 

acquisition, possession, or transfer is a misdemeanor.
589

20.3.2 Migratory Bird Treaty Act (MBTA) 

a. Prohibited Acts:

Unlawful Taking of Migratory Birds: Except as permitted by 

regulation, it is unlawful to take (pursue, kill, or offer for sale) 

a migratory bird or to sell (purchase, deliver, export, or import) 

any migratory bird

Baiting Migratory Birds: It is unlawful to take any migratory 

bird by aid of baiting. 

Unlawful Transportation of Any Bird: It is unlawful to 

transport from one state, territory, or district to another any 

bird that was taken or transported in violation of the state,

territory, or district law.

b. Elements:

1. Unlawful Taking of Migratory Birds:

• That the defendant unlawfully took (pursued, killed, 

offered for sale) or sold (purchased, delivered, exported, 

or imported) a certain bird; and, 

• That the bird was listed as a migratory bird in 50 C.F.R. 

§ 10.13.

2. Baiting Migratory Birds:

• That the defendant unlawfully took a migratory bird as 

listed in 50 C.F.R. § 10.13

• That the taking occurred on or over a baited area; and, 

o That the defendant knew or should have known 

that the area was baited; or
590

o That the defendant placed bait on, or adjacent to, 

an area for the purpose of taking the bird. 

3. Unlawful Transportation of Migratory or Other 

Birds:

• That the defendant transported any bird in interstate or 

foreign commerce; and

• That the bird was taken (or transported) in violation of 

state, territory, or district law. 

c. Explanation of Terms:

Migratory Bird: The MBTA protects migratory birds that are 

native to the United States or its territories and that are listed 

on 50 C.F.R. § 10.13. To be a “migratory bird” it must be listed 

on the C.F.R. It includes the bird’s parts, nest, or the egg of 

such a bird. 

d. Federal Jurisdictional Nexus: 

The MBTA was enacted pursuant to the United States’ treatymaking powers under the U.S. Constitution. Note that a 

violation need not occur on federal land. A violation may occur 

on private property without an interstate or foreign commerce 

connection. The United States signed treaties with foreign 

nations (Great Britain for Canada, Mexico, Japan, and Russia) 

protecting migratory birds. The MBTA implements and 

enforces these treaties. It also makes punishable the unlawful 

transportation of any bird moved in interstate or foreign 

commerce. 

e. Taking of Migratory Birds: 

Taking migratory birds must be in accordance with 
591

regulations published by the Secretary of Agriculture and 

Interior. Nothing in the MBTA prevents the states and 

territories from enacting additional laws for the protection of 

migratory or other birds, so long as these laws are not 

inconsistent with federal law. For example, in addition to a 

federal duck stamp, a hunter will likely need a state hunting 

license to hunt geese and ducks. Depredation permits may 

also be issued if the birds are deemed destructive.

f. Defendant’s Intent: 

The MBTA requires only general intent. The prosecutor must 

prove that the defendant was aware of the facts that made his 

conduct illegal, not that the defendant knew his acts were 

illegal. 

g. Baiting: 

“Baiting” migratory birds means scattering salt, grain, or 

other feed that could serve as a lure or attraction over areas 

where hunters are attempting to take them. It does not 

include taking birds over standing crops, flooded fields, or 

where grain is put out for normal agriculture purposes. 

h. Sample Charges:

1. Unlawful Taking of Migratory Birds: 

That the defendant did on or about ___ at Oakwood Bottoms 

in Southern Illinois kill ten mallard drakes, migratory birds 

listed on 50 C.F.R. § 10.13, without an Illinois hunting license 

or federal migratory bird stamp.

2. Baiting Migratory Birds: 

That the defendant did on or about ___ at Alto Pass in 

Southern Illinois shoot mourning doves, a migratory bird 

listed under 50 C.F.R. § 10.13, while knowing, or when he 
592

should have known, that the area was baited with several 20-

pound bags of bird seed. 

3. Unlawful Transportation of Any Bird: 

That the defendant did on or about ____ shoot wild turkeys out 

of season in violation of Missouri state law and then transport 

the birds in interstate commerce to Illinois for sale. (*Wild 

turkeys are not listed as migratory birds under 50 C.F.R. § 

10.13.) 

i. Penalties: 

Taking migratory birds without a hunting or depredation 

permit is a misdemeanor. Selling them or taking them with 

the intent to sell them is a felony punishable by not more than 

two years.

20.4 Ensuring the Continued Survival of Certain Animals 

and Plants 

The final three statutes show how Congress works to help with 

protect species from extinction. The Endangered Species Act 

(ESA) was passed with the goals of protecting endangered and 

threatened species, as well as the habitats of those species and 

supporting treaties that focus on certain species. In order to 

keep optimum sustainable populations of marine mammals 

(those species adapted to marine environment), Congress 

passed the Marine Mammal Protection Act. Finally, the bald 

eagle is a success story and was delisted from the Endangered 

Species Act in 2007. However, Congress wanted to ensure the 

success of our national symbol and passed the Bald and Golden 

Eagle Protection Act (BGEPA). The BGEPA places restrictions 

on the taking of Bald and Golden Eagles; their carcasses, parts 

(including feathers), nests or eggs.
593

20.4.1 Endangered Species Act (ESA) 

a. Prohibited Acts: 

Taking an Endangered Fish or Wildlife: Except as provided, it 

is unlawful for any person subject to the jurisdiction of the 

United States to take (or possess) an endangered species of fish 

or wildlife, or to violate any regulation pertaining to an 

endangered or threatened species. 

Taking an Endangered Plant: Except as provided, it is 

unlawful for any person subject to the jurisdiction of the 

United States to take an endangered plant or to violate any 

regulation pertaining to an endangered or threatened species 

of plant.

b. Elements

1. Taking an Endangered or Threatened Fish or 

Wildlife:

• That the defendant was a person subject to the 

jurisdiction of the United States; and 

• That the defendant unlawfully committed one or more of 

the following acts with respect to a certain endangered 

fish or wildlife species: 

o imported or exported the endangered species; 

o took the species while it was in the United States 

or territorial seas or on the high seas;

o possessed, transported, or sold the species after it 

had been so imported, exported, or taken;

o transported it in interstate or foreign commerce in 
594

the course of a commercial activity; 

o sold or offered it for sale in interstate or foreign 

commerce; 

o violated any regulation pertaining to an 

endangered species; or,

• That the defendant violated any regulation pertaining to 

a threatened species. 

2. Endangered or Threatened Plant:

• That the defendant was a person subject to the 

jurisdiction of the United States; and 

• That the defendant unlawfully committed one or more of 

the following acts with respect to a certain endangered 

plant species:

o imported or exported the endangered species;

o removed it from federal jurisdiction;

o damaged it while in an area of federal jurisdiction; 

o damaged it in violation of state law or in the course 

of state trespass law; 

o violated any regulation pertaining to the 

endangered species, or

• That the defendant violated any regulation pertaining to 

a threatened plant species. 
595

c. Explanation of Terms:

1. Endangered Species and Threatened Species: 

The Endangered Species Act (ESA) has a simple set of goals: 

Prevent the extinction of animal and plant species, restore 

their populations to the point that they are no longer 

threatened, and protect the ecosystems which support their 

survival. To receive protection, the fish, wildlife or plant (FW-P-) must be listed as either endangered or threatened by the 

designating agency. 

• Endangered Species: 16 U.S.C. § 1532(6) defines an 

endangered species as “any species [of animal or plant] 

which is in danger of extinction throughout all or a 

significant portion of its range. It does not protect 

insects that constitute a pest and whose protection 

under the provisions of this Act would present an 

overwhelming and overriding risk to people. 

• Threatened Species: 16 U.S.C. § 1532(20) defines 

threatened species plants or animals which are likely to 

become an endangered species within the foreseeable 

future throughout all or a significant portion of its 

range.” 

• Designating Agency: The U.S. Fish and Wildlife Service 

(USFWS) and the National Marine Fisheries Service 

(NMFS) designate endangered and threatened species. 

They create lists of such species. The USFWS maintains 

the list of endanger or threatened land and freshwater 

F-W-P-. NMFS maintains the list of 

endangered/threatened saltwater and anadromous F-WP-. Some examples follow:

o Endangered Land and Freshwater Animals: 

Beaver, woodland caribou, and snail kite (hawk).
596

o Threatened Land and Freshwater Animals: 

Northern and southern sea otters.

o Endangered Saltwater and Anadromous Animals: 

Largetooth sawfish, various populations of 

Atlantic sturgeon. 

o Threatened Saltwater and Anadromous Animals: 

Various populations of loggerhead sea turtles. 

2. Taking An Endangered or Threatened Species: 

A “taking” includes taking their parts. It could mean 

taking/possessing the products made from them, taking their 

eggs, offspring, or dead body. An endangered or threatened 

plant includes its seeds and roots. Taking endangered or 

threatened species includes harassing, harming, or pursuing 

them. It also means destroying their critical habitat. 

d. Exceptions: 

Alaskan natives may take endangered species so long as the 

“taking is primarily for subsistence purposes, and is not 

accomplished in a wasteful manner.” (Permit is still required) 

A taking may occur when the animal poses a significant threat 

of bodily harm. 

Federal permits for taking them may be obtained to prevent 

economic hardship and for scientific purposes. 

e. Conservation Efforts Successful: 

Finally, when conservations efforts have succeeded and the 

species is no longer endangered (or threatened) the species 

may be delisted; however, the species is likely to be protected 
597

under Lacey, the MBTA, or the Marine Mammal Protection 

Act. 

f. Federal Jurisdictional Nexus: 

In enacting the ESA, Congress found that protecting 

endangered and threatened species of F-W-P- is of esthetic, 

ecological, educational, historical, recreational, and scientific 

value to the United States. What’s more, the United States 

through its treaty powers has pledged its cooperation in the 

international community to conserve various species of F-WP- facing extinction. 

g. Sample Charges: 

Endangered Fish or Wildlife: That the defendant did between 

____ and _____ in the Florida Everglades harass Snail Kites, 

raptors in the family of hawks and eagles, which are 

designated as an endangered species, by wedging his pontoon 

boat into the reeds next to the nests of the birds for purposes 

of drawing them out so that he could photograph them.

Endangered Plant: That the defendant did on or about _____ 

remove from the Shawnee National Forest in Southern Illinois 

the “Eastern Prairie Fringed Orchid,” a threatened species of 

plant according to the U.S. Fish and Wildlife Service, by 

entering an area marked “Off Limits” and digging up the 

plants.

h. Penalties: 

Violating the ESA is a misdemeanor punishable by a $50,000 

fine and one year in prison. 
598

20.4.2 Marine Mammal Protection Act (MMPA) 

a. Prohibited Acts:

Unlawfully Taking Marine Mammals: Except as provided, it 

is unlawful for any person or vessel subject to the jurisdiction 

of the United States to take any marine mammal. 

Unlawfully Importing Marine Mammals That were Pregnant, 

from a Depleted Species, or Taken Inhumanely: Except as 

provided, it is unlawful to import into the United States any 

marine mammal that was (1) pregnant at the time, nursing at 

the time (or less than eight months old, whichever is later), (2) 

from a depleted stock, or (3) that was taken inhumanely. 

Unlawfully Importing Marine Mammal Products: It is 

unlawful to import into the United States any marine mammal 

that was taken unlawfully or taken in violation of law of the 

country of its origin. 

b. Elements:

1. Unlawful Taking Marine Mammals: 

• That the defendant was a person (or vessel) subject to 

the jurisdiction of the United States; and 

• That the defendant unlawfully committed one or more of 

the following acts: 

o took a marine mammal on the high seas;

o took a marine mammal in waters or on lands 

under the jurisdiction of the United States;

o used a port (harbor, or other place) under the 

jurisdiction of the United States to take or import 
599

a marine mammal (or product);

o possessed a marine mammal (or product) that was 

taken unlawfully;

o transported, purchased, sold, exported, or offered 

to do those things with respect to any marine 

mammal (or marine mammal product) taken in 

violation of this Act; or,

o used in a commercial fishery any means or 

methods of fishing in contravention of a 

regulations issued by the Secretary to prevent the 

incidental taking of marine mammals.

2. Importing Marine Mammals that were Pregnant, 

from a Depleted Species, or Taken Inhumanely:

• That the defendant was subject to the jurisdiction of the 

United States; and,

• That the defendant unlawfully imported a marine 

mammal under one or more of the following conditions:

o while it was pregnant at the time;

o while nursing (or less than eight months old);

o from a species or population stock which the 

Secretary had designated as a depleted; or,

o taken in a manner deemed inhumane by 

regulation of the Secretary.

3. Importing Marine Mammal Products: 

• That the defendant imported into the United States any 
600

of the following 

o a marine mammal taken unlawfully;

o a marine mammal taken in violation of the law of 

the country of its origin;

o a marine mammal product that is illegal to possess 

under United States law;

o a marine mammal product that is illegal to possess 

under the law of the country of its origin;

o fish, if such fish were caught in a manner contrary 

to the manner proscribed by the Secretary for the 

protection of marine mammals which might be 

taken incidentally during commercial fishing, 

whether taken or not.

c. Explanation of Terms:

1. Marine Mammal: 

This includes (1) “any mammal which is morphologically 

adapted to the marine environment including sea otters and 

sea cows, seals, walruses, dolphins, and whales or (2) any 

mammals which primarily inhabits the marine environment 

such as the polar bears. For purposes of this Act, a marine 

mammal includes any part of the mammal including fur.

2. Marine Mammal Product: 

This includes an item or merchandise which consists or is 

composed in whole or in part of any marine mammal.
601

3. Taking a Marine Mammal: 

This includes harassing (hunting, capturing, or killing, or 

attempting to harass, hunt, capture, or kill) any marine 

mammal. Harassment means any act of pursuit, torment, or 

annoyance which – (1) has the potential to injure a marine 

mammal or marine mammal stock in the wild, or (2) has the 

potential to disturb a marine mammal or marine mammal 

stock in the wild by causing disruption or behavioral patterns, 

including, but not limited to, migration, breathing, nursing, 

breeding, feeding, or sheltering. Feeding dolphins can be 

harassment because they become dependent on a human food 

source. Feeding does not include routine discard of bycatch 

during fishing operations if the discharge is otherwise legal. 

d. Exceptions:

1. Marine Mammals Taken Incidentally to 

Commercial Fishing. 

It is not unlawful to take a marine mammal (e.g., a dolphin) 

incident to commercial fishing if the fishing was done in 

accordance with regulations proscribed by the Secretary that 

reduce the chance of incidental taking. Failure to follow these 

regulations is a crime regardless of whether a marine mammal 

was taken or not. 

2. Authorized Deterrence Measures. 

Authorized people may deter marine mammals from 

endangering public safety or damaging personal or 

government property (including fishing gear) so long as the 

mammal is not seriously injured.

3. Alaskan Natives. 

Native Americans indigenous to the North Pacific or Artic 
602

Ocean may be authorized to take marine mammals for 

subsistence or creating and selling handcrafts and clothes.

4. Self-Defense. 

Taking a marine mammal is authorized when necessary for 

self-defense or the defense of others from an imminent threat. 

The taking must be reported within 48-hours.

e. Jurisdictional Nexus: 

Congress found that certain species and population stocks[1] 

of marine mammals may be in danger of extinction or 

depletion because of man’s activities. Marine mammals and 

their products either move in interstate commerce or affect the 

balance of marine ecosystems in a manner which is important 

to other animals and animal products in interstate commerce. 

The protection of marine mammals and their habitats is 

necessary to ensure the continuing availability of those 

products which move in interstate commerce. Congress found 

that marine mammals are of great international, esthetic, 

recreational, and economic significance. 

f. Sample Charge: 

Taking a Marine Mammal: That Sunset Tour Boats Inc. did 

unlawfully on or about ___ in and around St. Simons Island, 

Georgia, harass bottlenose dolphins, marine mammals, by 

encouraging and allowing their customers to feed them shrimp 

and other fish.

Importing Marine Mammals That were Pregnant, from a 

Depleted Species, or Taken Inhumanely: That the Big City Zoo 

did unlawfully on or about ___ import from Greenland a harp 

seal that was less than eight months old.

Importing Marine Mammal Products: That the ACME Fish 
603

Company did, unlawfully, in Newport, Rhode Island, on or 

about ____ import cod fish that were caught in a manner that 

violated Greenland’s laws for the protection of marine 

mammals which might be taken incidentally in commercial 

fishing operations.

g. Penalty: 

A fine of not more than $20,000 and imprisonment for one year 

or less.

20.4.3 Bald and Golden Eagle Protection Act (BGEPA) 

Summary of the Statute: It is unlawful for anyone to 

knowingly, or with wanton disregard of the consequences take 

or possess a bald or golden eagle without following the 

permitting process.

a. Elements: 

• That the defendant did knowingly, or with wanton 

disregard of the consequences, one or more of the 

following acts with respect to a bald or golden eagle: 

o possessed the bird; 

o sold it; 

o purchased it; 

o offered to sell or purchase it; 

o transported it, or imported or exported it; and,

• That the defendant did so unlawfully without following 

the permitting procedures.
604

b. Explanation of Terms. 

1. Taking: 

Taking includes pursuing (shooting at, poisoning, capturing 

trapping, collecting, molesting, or disturbing) the bird. A bald 

or golden eagle includes their parts, nests, or eggs. Taking 

includes molesting or disturbing bald or golden eagles. 

Individuals, corporations, and partnerships may be prosecuted 

for such acts. 

2. Population stock 

“Population stock” or “stock” means a group of marine 

mammals of the same species or smaller taxa in a common 

spatial arrangement, that interbreed when mature.

c. Exceptions: 

Taking bald and golden eagles must be as strictly proscribed 

by the Secretary of Interior. Permits for taking them may be 

granted for scientific, exhibition, Native American religious 

purposes, and for the protection of wildlife or livestock. Golden 

eagles may be taken for falconry if they would otherwise been 

taken for the protection of wildlife or livestock.

d. Federal Jurisdictional Nexus: 

The Continental Congress of 1782 adopted the bald eagle as 

the national symbol. (That Benjamin Franklin argued for the 

wild turkey is a myth.) By the 1930’s, bald eagle populations 

were on a frightening decline. In 1940, Congress enacted The 

Bald Eagle Act finding that the bird was the symbolic 

representative of a new nation under a new government and 

in a new world. But more had to be done. Populations 

continued to plummet due to hunting and the destruction of 

habitat and nesting areas. DDT was also much to blame. The 
605

insecticide infested streams and waters, which obviously 

infected fish. The eagles ate the fish and were poisoned. DDT 

weakened their eggs, and they frequently broke during 

incubation. In 1962, Congress added the golden eagle for 

protection finding their numbers also declining. What’s more, 

it was believed that hunters could confuse a juvenile bald eagle 

for a golden eagle since the characteristic yellow bill, white 

head and tail feathers takes several years to develop. The bald 

eagle was listed as an endangered species in 1978; but 

fortunately, conservation efforts were a success. The bald 

eagle was delisted in 2007; however, it remains protected 

under the BGEPA, the Lacey Act, and MBTA. 

e. Sample Charge: 

That the defendant did, unlawfully, on _______ knowingly and 

unlawfully have in his possession in St. Louis County, 

Missouri, bald eagle tail feathers and talons without a permit.

f. Penalty: 

A fine of not more than $5000 and imprisonment of not more 

than a year. 
606

 
607

Chapter 21 - 

 

Officer Liability 

21.1 Introduction ............................................................. 608

21.1.1 Civil Rights .............................................................608

21.1.2 Civil Liability..........................................................609

21.2 Federal Criminal Remedies ..................................... 610

21.2.1 Title 18 U.S.C. § 241 - Conspiracy Against 

Rights........................................................................610

21.2.2 Title 18 U.S.C. § 242 - Deprivation of Rights Under 

Color of Law ...........................................................................612

21.3 Federal Civil Remedies - Constitutional Torts ........ 614

21.3.1 Title 42 U.S.C. § 1983 (Civil Action for Deprivation 

of Rights) ................................................................................615

21.3.2 Bivens......................................................................616

21.3.3 Arrests and Searches Without Probable Cause....617

21.3.4 Knowingly Submitting False or Misleading 

Affidavits For Search or Arrest Warrants............................618

21.3.5 Fourth Amendment Excessive Force Claims........620

21.3.6 Failure to Intervene When Excessive Force is 

Used..........................................................................620

21.4 Immunity for Constitutional Violations .................. 621

21.4.1 Sovereign Immunity...............................................621

21.4.2 Absolute Immunity.................................................622

21.4.3 Qualified Immunity................................................622

21.5 Civil Liability Under State Tort Principles ............. 624

21.5.1 Negligent Torts .......................................................624

21.5.2 Intentional Torts.....................................................628

21.6 The Federal Tort Claims Act (FTCA) ...................... 629

21.6.1 Negligent Torts .......................................................629

21.6.2 Intentional Torts.....................................................630
608

21.6.3 Scope of Employment .............................................631

21.6.4 Initiating a Civil Lawsuit under the FTCA ..........633

21.6.5 Defenses to Negligent and Intentional Torts........634

_______________________________________________________

21.1 Introduction 

Law enforcement work is dangerous. Contact with the public 

is constant, often confrontational and charged with emotion. 

Within this context, law enforcement officers are responsible 

for preventing and investigating crimes that may include 

violations of “civil rights.” Further, the Constitution and 

federal laws protect the public against the unjustified 

infringement of those civil rights by law enforcement officers.

Officers must perform their duties in accordance with the 

Constitution and federal law. They may be both civilly and 

criminally liable for violations of civil rights if they discharge 

those duties unreasonably, recklessly, or indiscriminately, or 

exceed the scope of their employment and authority.

21.1.1 Civil Rights

The Constitution guarantees and federal law protects 

individual’s “civil rights.” Constitutionally enumerated civil 

rights include, but are not limited to, the First Amendment’s 

freedom of speech, freedom of religion, and freedom of 

assembly; the Fourth Amendment’s protection against 

unreasonable searches and seizures; the Fifth Amendment’s 

right of due process and the protection against selfincrimination; and the Eighth Amendment’s protection 

against cruel and unusual punishment. Federal statutes add 

to the list of civil rights, including rights established in the 

areas of education, employment, voting, and access to public 

facilities and accommodations.
609

21.1.2 Civil Liability

a. Definition of a Tort

The civil liability of a federal law enforcement officer is 

predominantly an issue of state tort law. Broadly speaking, a 

tort is a civil wrong, other than breach of contract, for which 

the court will provide a remedy in the form of an action for 

damages. The remedy can involve money damages or an 

injunction. An injunction is an order from a court that 

prohibits someone from doing something.

b. Torts versus Crimes

Torts differ from crimes in many respects, primarily in the 

interests affected by each and in the remedies afforded by 

each. A crime is an offense against the public at large, for 

which the state, as the representative of the public, will bring 

proceedings in the form of a criminal prosecution. As such, a 

federal criminal prosecution is captioned as “United States v. 

Defendant.” A tort, on the other hand, is a civil action 

commenced and maintained by the injured person. A civil 

lawsuit is captioned as “Plaintiff (the injured party) v. 

Defendant (the wrongdoer).”

The intent of a criminal prosecution is to protect and vindicate 

the interests of the public as a whole by punishing offenders, 

removing them from society (incarceration), reforming them, 

and deterring the offender and others from committing similar 

acts. The penalty upon conviction of a crime is a fine, 

imprisonment, and sometimes death. Criminal law is not 

primarily concerned with compensating the victim, although 

restitution and victim assistance programs may accomplish 

this end. Tort actions are intended to compensate the victim 

for the damage suffered, at the expense of the wrongdoer. A 

defendant who loses a lawsuit may be required to pay money 

damages (usually the amount that will compensate the victim, 
610

but, in certain cases, punitive damages may be awarded). 

Torts are private matters that are not usually a concern of the 

government or the public (unless, of course, the government is 

a party).

Both criminal prosecutions and civil lawsuits require the proof 

of “elements.” In a criminal prosecution, the government must 

present evidence that proves each and every element of each 

offense charged beyond a reasonable doubt. In a civil action, 

the plaintiff must prove each and every element of each tort 

alleged by a preponderance of the evidence.

Although there are significant differences between crimes and 

torts, the remedies are not mutually exclusive. The same act 

or conduct can be the subject of both criminal prosecution and 

a civil suit.

21.2 Federal Criminal Remedies 

Congress passed criminal statutes designed to punish those 

who violate the civil rights of others.

21.2.1 Title 18 U.S.C. § 241 - Conspiracy Against Rights

This statute allows the federal government to prosecute 

anyone, including federal, state, and local law enforcement 

officers, who conspires to violate a person’s civil rights. It 

reads, in pertinent part:

If two or more persons conspire to injure, oppress, 

threaten, or intimidate any person in any State, 

Territory, Commonwealth, Possession, or District 

in the free exercise or enjoyment of any right or 

privilege secured to him by the Constitution or 

laws of the United States, or because of his having 

so exercised the same; or
611

If two or more persons go in disguise on the 

highway, or on the property of another, with intent 

to prevent or hinder his free exercise or enjoyment 

of any right or privilege so secured...

The statute provides penalties, including fines, imprisonment, 

and in certain instances, death.

There are two distinct crimes under this statute.

a. Elements of Crime 

1. 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. The elements of the second crime are:

• Two or more persons go in disguise on the highway or 
612

property of another;

• To prevent or hinder;

• Any person;

• In the exercise or enjoyment of any constitutional or 

federal civil right.

The historical context of this law is apparent as it was 

specifically designed to deal with the activities of the Ku Klux 

Klan. The crime is a felony, punishable by up to death.

21.2.2 Title 18 U.S.C. § 242 - Deprivation of Rights Under 

Color of Law

This statute empowers the federal government to prosecute 

federal, state, and local law enforcement officers and other 

public officials who, under the mantel of their official authority 

(“color of law”), intentionally violate the civil rights of 

prisoners, suspects, or other persons. It reads, in pertinent 

part:

Whoever, under color of any law, statute, 

ordinance, regulation, or custom, willfully subjects 

any person in any State, Territory, 

Commonwealth, Possession, or District to the 

deprivation of any rights, privileges, or 

immunities secured or protected by the 

Constitution or laws of the United States, or to 

different punishments, pains, or penalties, on 

account of such person being an alien, or by reason 

of his color, or race, than are prescribed for the 

punishment of citizens, shall be...

The statute provides penalties including fines, imprisonment, 

and in certain instances, death.
613

a. Elements

The elements of this crime are:

• An activity “under color of law;”

• With the specific intent (willfully);

• To deprive any person;

• Of any constitutional or federal civil right.

b. “Under Color of Law”

“Under color of law” necessarily involves actions on the part of 

a law enforcement officer or public official, but not everything 

done by a law enforcement officer is done “under color of law.” 

If status as a law enforcement officer did not materially 

facilitate the wrong committed, the officer is deemed to have 

acted in a purely private capacity, and will not be criminally 

liable under this statute.

Certainly, when an officer does an act of a general law 

enforcement nature, such as make an arrest, conduct a search, 

etc., the officer will be considered to have acted “under color of 

law.” Whether the officer was in uniform or “on duty” are 

important but not controlling factors in determining whether 

an officer was acting under color of law. Law enforcement 

officers can act “under color of law” even while off duty and out 

of uniform.

“Under color of law” is a broader legal concept than “within the 

scope of employment.” Misuse of power, possessed by virtue of 

law and made possible only because the wrongdoer is clothed 

with the authority of law, is action taken “under color of law.” 

Even if the law enforcement officer does not purport to have 

acted in the line of duty, and even if the conduct clearly 
614

violates the law or agency policy, it will still be treated as 

“under color” of his authority if his status as a law enforcement 

officer materially facilitated the wrong. An officer may not 

remove, literally or figuratively, the badge or mantel of 

authority by disavowing it, and thereby avoid prosecution 

under this statute. Therefore, an officer can act outside the 

scope of employment and even contrary to law, policy, and 

practice and still be determined to have acted “under color of 

law.”

Private persons can act “under color of law” if they act in 

concert and jointly engage with law enforcement in the 

violation of civil rights.

c. “Specific Intent (Willfully)”

It is not enough that the officer intended to do the act that 

resulted in the deprivation of a constitutional or federal civil 

right. To convict an officer of violating § 242, the government 

must prove the officer possessed specific intent to deprive a 

person of a civil right. There must be the specific intent to 

punish or prevent the exercise of a constitutionally guaranteed 

right.

“Willfully” implies not merely the conscious purpose to do 

wrong, but intent to deprive a person of a right which has been 

made specific either by the terms of the Constitution or federal 

law, or by court decisions interpreting them. Requisite intent 

can be established by all attendant circumstances.

21.3 Federal Civil Remedies - Constitutional Torts 

In addition to criminal prosecution, tort actions brought 

against federal employees and agents in their individual and 

personal capacities for violations of civil rights can generally 

be classified as constitutional torts (based on a violation of 

rights found in the United States Constitution). As discussed 
615

later in this chapter, tort actions against the federal 

government and its employees and agents acting within the 

scope of their employment can generally be classified as state 

law torts (principles of civil liability that exist under the laws 

of the states).

Constitutional tort claims may be asserted against a law 

enforcement officer under two separate, but related, bases.

21.3.1 Title 42 U.S.C. § 1983 (Civil Action for Deprivation 

of Rights) 

Title 42 U.S.C. § 1983 reads, in pertinent part:

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or other 

proper proceeding for redress.

This statute provides a civil cause of action against state and 

local law enforcement officers who, acting under color of law, 

deprive an individual of any civil right. It is not a criminal 

statute, but a civil one that permits an aggrieved party to sue 

state and local law enforcement officers in federal court for 

civil rights violations.

In order to establish a civil lawsuit claim under § 1983, the 

plaintiff must prove, by a preponderance of evidence, the 

following elements:

• An act;
616

• Under color of law of a state, territory, or the District of 

Columbia; 

• Depriving any person (a citizen or other person within 

United States jurisdiction); 

• Of rights, privileges, or immunities secured by the 

Constitution or federal laws. 

“Under color of law” is the same principle as discussed above 

regarding 18 U.S.C. § 242. However, by its express language, 

this statute applies only to state and local law enforcement 

officials and does not apply to federal officers and agents. 

No specific intent to violate a Constitutional or federal civil 

right is required. The plaintiff must only prove intent to do the 

act that results in the deprivation of civil rights. It must be a 

volitional act and not accidental nor 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. 

21.3.2 Bivens 

Until the 1971 Supreme Court decision, Bivens v. Six 

Unknown Named Agents of the Federal Bureau of Narcotics, 

402 U.S. 388 (1971), a person whose civil rights were violated 

by a federal officer or agent was unable to sue a federal officer 

or agent in federal court. Title 42 U.S.C. § 1983, by its express 

language, was not available as it applied only to civil rights 

violations committed by state and local officials. 

In the Bivens case, Webster Bivens alleged that agents from 

the Federal Bureau of Narcotics (now the Drug Enforcement 
617

Administration) arrested him and searched his apartment 

without a warrant and that his arrest was made without 

probable cause. Bivens filed a civil suit against the federal 

agents in federal court. Bivens argued that the federal agents 

violated his Fourth Amendment Constitutional right to be safe 

in his own home from unreasonable searches and seizures. 

Eventually, Bivens reached the Supreme Court on the issue of 

whether an aggrieved party may sue federal agents in federal 

court for violations of constitutionally protected rights. The 

Supreme Court decided the alleged behavior, if true, 

constitutes a federal constitutional wrong that should be 

determined by a federal court rather than a state court. The 

Supreme Court also held that since there was no remedy in 

state law for wrongdoing committed by federal agents, the 

Court should create such a remedy. Based upon the Bivens 

decision, federal agents are now subject to civil suits in federal 

court alleging civil rights violations. 

In Bivens, the Supreme Court created an analogy to 42 U.S.C. 

§ 1983 under which federal officers and agents may be sued in 

civil court for violating a person’s constitutional rights. These 

types of suits are commonly called “Bivens Actions.” 

The following are the most common types of constitutional 

torts alleged against federal officers under Bivens. 

21.3.3 Arrests and Searches Without Probable Cause 

In Bivens, the Supreme Court held that federal law 

enforcement officers are civilly liable for violations of the 

Fourth Amendment. Thus, when a federal law enforcement 

officer makes an arrest without probable cause or unlawfully 

conducts a search, an injured party can file a Bivens suit 

against the officer. 

In determining whether a Bivens suit for an unlawful, 
618

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 at the time. 

Whether an arrest is constitutionally valid depends upon 

whether, at the moment the arrest was made, the officers had 

“arguable” probable cause to make it - whether at that moment 

the facts and circumstances within their knowledge and of 

which they had reasonably trustworthy information were 

sufficient to warrant a reasonable, prudent, cautious officer in 

believing that the person arrested had committed or was 

committing an offense. Where “arguable” probable cause 

exists, law enforcement officers who reasonably but 

mistakenly conclude that probable cause is present are 

entitled to qualified immunity.

The same standard applies in unlawful search cases. In search 

cases, it is likewise inevitable that law enforcement officials 

will in some cases reasonably but mistakenly conclude that 

probable cause is present. The relevant question is whether a 

reasonable officer could have believed the search to be lawful, 

in light of clearly established law and the information known 

by the searching officer. An officer’s subjective beliefs about 

the search are irrelevant. 

21.3.4 Knowingly Submitting False or Misleading 

Affidavits For Search or Arrest Warrants 

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme 

Court held that a law enforcement officer violates the Fourth 

Amendment if, in order to obtain a search warrant, he perjures 

himself or testifies in reckless disregard of the truth. The 

Supreme Court has clearly established that the Fourth 

Amendment requires a truthful, factual showing sufficient to 

constitute probable cause. Specifically, the Court noted that: 

Where the defendant makes a substantial 
619

preliminary showing that a false statement 

knowingly and intentionally, or with reckless 

disregard for the truth, was included by the affiant 

in the warrant affidavit, and if the allegedly false 

statement is necessary to the finding of probable 

cause, the Fourth Amendment requires that a 

hearing be held at the defendant’s request. In the 

event that at that hearing the allegation of perjury 

or reckless disregard is established by the 

defendant by a preponderance of the evidence, 

and, with the affidavit’s false material set to one 

side, the affidavit’s remaining content is not 

sufficient to establish probable cause, the search 

warrant must be voided and the fruits of the 

search excluded to the same extent as if probable 

cause was lacking on the face of the affidavit. 

A Franks violation can also occur when law enforcement 

officers obtain a warrant through the intentional or reckless 

omission of material facts. 

Although the Franks standard was developed in the criminal 

context, it also defines the scope of qualified immunity in civil 

rights actions, including Bivens suits. 

When the information in an affidavit is reasonably believed to 

be true or appropriately accepted as true by the law 

enforcement officer, a Bivens civil lawsuit may not be properly 

brought. However, an affidavit that contains information the 

officer knew to be false or would have known was false had the 

officer not recklessly disregarded the truth violates the Fourth 

Amendment. In such circumstances, a plaintiff may properly 

file a Bivens suit because the law enforcement officer cannot 

be said to have acted in an objectively reasonable manner. In 

such cases, a court will likely not grant a motion to dismiss for 

qualified immunity. 
620

21.3.5 Fourth Amendment Excessive Force Claims 

In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court 

established the proper framework for analyzing an 

individual’s claim that a law enforcement officer used 

excessive force. The Supreme Court has long recognized that 

the right to make an arrest or investigatory stop necessarily 

carries with it the right to use some degree of physical coercion 

or threat thereof to effect it. 

The issue in cases involving claims of excessive force is 

whether the arresting officer’s actions were “objectively 

reasonable” in light of the facts and circumstances confronting 

the officer, without regard to the officer’s underlying intent or 

motivation. A court must apply the “reasonableness” analysis 

from the perspective of a reasonable officer on the scene, and 

not with the 20/20 vision of hindsight. 

21.3.6 Failure to Intervene When Excessive Force is 

Used 

An individual has the right under the Fourth Amendment to 

be free from the excessive use of force by law enforcement 

officers. A law enforcement officer has an affirmative duty to 

intercede on the behalf of a person whose constitutional rights 

are being violated in his presence by other officers. 

Accordingly, a federal law enforcement officer may, in certain 

circumstances, be sued under Bivens for failing to intervene to 

protect a victim from another officer’s unlawful use of 

excessive force. One who is given the badge of authority of a 

police officer may not ignore the duty imposed by his office and 

fail to stop other officers who summarily punish a third person 

in his presence or otherwise within his knowledge. 

It is not necessary that an officer actually participate in the 

excessive use of force to be held liable. Rather, an officer who 

is present at the scene and who fails to take reasonable steps 
621

to protect the victim of another officer’s use of excessive force 

can be held liable for his inaction. An officer who fails to 

intercede is liable for the preventable harm caused by the 

actions of the other officers when that officer observes or has 

reason to know: 

• That excessive force is being used; or 

• That a citizen has been unjustifiably arrested; or 

• That any constitutional violation has been committed by 

a law enforcement official. 

Therefore, if a law enforcement officer fails or refuses to 

intervene when a constitutional violation such as an 

unprovoked beating takes place in his presence, the officer can 

be held liable under Bivens. However, there must have been a 

realistic opportunity to intervene to prevent the harm from 

occurring. In order for the officer to be liable, the excessive 

force must be of sufficient duration to allow the officer to 

intervene. If so, the officer who stands by without trying to 

assist the victim becomes a “tacit collaborator.” 

While most of the cases that recognize this cause of action 

involve state officials being sued under § 1983, the general 

trend in the appellate courts is to incorporate § 1983 law into 

Bivens suits. Since the remedial purposes of Bivens and § 1983 

are essentially the same, appellate courts have generally 

looked to the principles established in the case law construing 

§ 1983 when deciding cases brought under Bivens. 

21.4 Immunity for Constitutional Violations 

21.4.1 Sovereign Immunity 

Sovereign (governmental) immunity has its common law roots 

in England under the theory that “the King can do no wrong.” 
622

This theory was an outgrowth of the divine rights of kings, 

and, in effect, prevented any and all lawsuits against the 

Crown. 

When the individual sovereign was replaced by the modern 

state, this principle was adopted to provide that a suit against 

a ruling government without its consent was inconsistent with 

the very idea of supreme executive power. In the United 

States, public policy and necessity dictate that the United 

States as sovereign is immune from suit unless it consents to 

be sued. The terms of its consent to be sued in any court define 

the court’s jurisdiction to entertain the suit. 

21.4.2 Absolute Immunity 

“Absolute immunity” avoids personal civil liability. It is 

conferred because of the status or position of the favored 

defendant. Officials, such as legislators in their legislative 

functions, judges in their judicial functions, and certain 

executive branch officials (the President, executive officer 

engaged in adjudicative functions, and prosecutors), whose 

special functions or constitutional status requires complete 

protection from suit, may assert the defense of absolute 

immunity. 

21.4.3 Qualified Immunity 

Qualified immunity is immunity from civil suit and entitles a 

law enforcement officer to avoid standing trial or facing the 

burdens associated with civil litigation. When a law 

enforcement officer is sued for a constitutional tort under 42 

U.S.C. § 1983 or Bivens, the officer may be entitled to qualified 

immunity. Qualified immunity is asserted by the defendant 

(officer) and can protect the officer from individual civil 

liability. Qualified immunity shields government officials from 

personal liability for civil damages provided: (1) they act 

reasonably; or (2) their conduct does not violate clearly 
623

established statutory or constitutional rights of which a 

reasonable law enforcement officer would have known. 

The cases of Hanlon v. Berger, 526 U.S. 808 (1999), and Wilson 

v. Layne, 526 U.S. 603 (1999), illustrate the concept of 

“qualified immunity.” In both of these cases, the plaintiffs sued 

federal agents under Bivens, alleging violations of the Fourth 

Amendment when the agents brought the media along during 

the service of an arrest warrant and a search warrant. In 

Wilson, federal marshals took a newspaper reporter and 

photographer along when they attempted to serve an arrest 

warrant at the home of the suspect’s parents. In Hanlon, 

federal Fish and Wildlife Service agents took CNN along when 

they served a search warrant at the Berger ranch. Both 

followed established agency ride-along policies. 

The Supreme Court had two questions to consider. First, was 

there a constitutional violation? The Supreme Court held that 

police violate the Fourth Amendment rights of homeowners by 

bringing members of the media or other third parties into 

homes during the execution of a warrant, when the presence 

of the third parties in the home is not in aid of the warrant’s 

execution. In other words, these federal agents had committed 

a constitutional tort. 

Second, if the plaintiffs show the officer violated a statutory or 

constitutional right, was that right clearly established such 

that a reasonable law enforcement officer would have known 

he was violating that right? If not, the officers or agents are 

entitled to qualified immunity. In assessing whether a law 

enforcement officer is protected by qualified immunity, the test 

to be applied is one of “objective reasonableness.” The Supreme 

Court held in Hanlon and Wilson that the agents acted 

reasonably when they relied on their established agency policy 

for media “ride-alongs,” and the fact that media ride-alongs 

were a widespread practice. 
624

In assessing whether the right that was allegedly violated was 

“clearly established,” the Court said that the contours of the 

right must be sufficiently clear that a reasonable official would 

understand that what he is doing violates that right. The 

Court held that it was reasonable for these agents to have 

believed that bringing the media along during the execution of 

an arrest or search warrant (even in a home) was lawful. As 

such, the right was not clearly established. Therefore, the 

agents were entitled to qualified immunity. 

In sum, when the defense of qualified immunity is applicable 

in a lawsuit alleging a constitutional tort, officers will not be 

held personally liable as long as their actions are reasonable 

in light of current law. 

21.5 Civil Liability Under State Tort Principles 

As stated previously, tort actions brought against federal 

employees and agents in their individual and personal 

capacity can generally be classified as constitutional torts 

(based on a violation of rights found in the United States 

Constitution), and these tort actions are asserted under 42 

U.S.C. § 1983 or Bivens. Alternatively, tort actions against the 

federal government and its employees and agents when acting 

within the scope of their employment can generally be 

classified as state law torts (principles of civil liability that 

exist under the laws of the states). The traditional state law 

torts applicable to federal law enforcement officers are: (1) 

negligent torts; and (2) intentional torts (such as battery, 

assault, and false imprisonment). 

21.5.1 Negligent Torts 

For federal law enforcement officers, negligence is the most 

frequently occurring of the state law torts due to the operation 

of government motor vehicles. The elements of an action for 

negligence are: Duty; Breach of Duty; Causation; and 
625

Damages.

a. Duty

Generally, there is no affirmative duty to act. That is, the law 

does not usually require that people intercede, even in 

situations in which they could prevent property damage, 

injury, or loss of life at no risk to themselves. Failure to 

intercede will not create civil liability for death, injury, or 

property damage. There are, however, exceptions to this 

general rule. For example, there is an affirmative duty to act 

when the plaintiff’s peril results from the defendant’s own 

negligence. In this case, the defendant is expected to intercede 

to aid the plaintiff.

In the law enforcement context, the general rule is that there 

is no right to basic public services and no affirmative duty on 

law enforcement to act when members of the general public 

are imperiled. There are, however, exceptions to this general 

rule. Special relationships can exist between a person and law 

enforcement creating an affirmative duty to act such as when 

the police promise to protect the target of a threat (i.e., the 

Witness Protection Program), or when they assure a caller that 

they are responding to their request for assistance. Failure to 

do so can result in civil liability when reliance on those specific 

promises of protection causes the person to forego steps to 

protect themselves.

A special relationship will also exist when law enforcement 

officers have someone in their custody. Once the government 

takes a person into its custody, the law imposes a duty to 

assume some responsibility for the person’s safety and general 

well-being. For example, federal officers were found to be liable 

when, while walking a disabled and intoxicated arrestee up a 

ramp and into the police station, the arrestee tripped and fell 

striking her head. As a result, the arrestee suffered a fracture 

and other injuries. The Court said that the arrestee would not 
626

have fallen were it not for the officers’ negligence. The officers 

had a duty to assist the arrestee in walking to ensure that she 

did not fall since the arrestee’s hands were cuffed behind her 

back. The officers breached that duty by failing to hold on to 

her securely to prevent her stumbling and by failing to break 

her fall.

Acting when not required to do so may create civil liability 

when there would otherwise be none. When there is no 

affirmative duty to act, one who gratuitously acts for the 

benefit of another assumes a duty to act like an ordinary, 

prudent, reasonable person. The actor may be civilly liable for 

injuries or property damage suffered by the person they are 

trying to aid. In response to such liability exposure, many 

states have enacted “Good Samaritan” statutes. These 

statutes are designed to encourage medical professionals to 

intervene to save lives and prevent serious injury when they 

would otherwise have no legal duty to do so. These laws protect 

licensed doctors, nurses, paramedics, EMTs, and similarly 

trained and skilled persons from civil liability when they 

voluntarily render emergency treatment. They are still liable, 

however, for gross negligence.

b. Breach of Duty

Plaintiff can prove breach of duty by showing that the 

defendant failed to meet the applicable standard of care. What 

is the applicable standard of care? When the defendant owes 

someone a duty or when the defendant has assumed a duty, 

the basic standard of care required is that of an objective 

“reasonable person.” A fundamental question in a negligence 

action is, “What would a reasonable person have done under 

the same or similar circumstances?”

Sometimes, however, special standards will apply requiring a 

person to exercise care beyond that which would be expected 

of an ordinary “reasonable person.” For example, professionals 
627

are required to possess and exercise the knowledge and skill of 

a member of their profession in good standing and to use such 

superior judgment, skill, and knowledge as they may actually 

possess. For law enforcement officers and agents, for acts of a 

law enforcement nature within the scope of their duties, the 

fundamental question becomes, “What would a reasonable law 

enforcement officer or agent have done under the same or 

similar circumstances?”

A breach of duty can be shown by proving that:

• The care exercised was below the standard of care 

established by custom or usage;

• A violation of a pertinent statute such as a violation of 

statutory rules of the road by a federal employee in 

driving a motor vehicle in the course of employment; or

• A violation of agency policies and practices.

c. Causation

The defendant’s act that breached the duty of care must be the 

cause of plaintiff’s damages.

d. Damages

The plaintiff must suffer some form of damage. In civil suits, 

the plaintiff may recover for the personal injury or property 

damage caused by defendant’s breach of duty. The recovery is 

generally compensatory, designed to make the injured party 

whole by reimbursing actual expenses and providing for pain 

and suffering and permanent injury and damage. It may also 

include attorney’s fees and costs of litigation. In intentional 

torts, it may also include punitive damages designed to punish 

the wrongdoer and deter future similar conduct.
628

21.5.2 Intentional Torts

The elements of an intentional tort are similar to those of a 

negligent tort except that the act that causes the damages 

must be willful and intentional.

Intentional torts can be against a person, or against property. 

Among the most common intentional torts in each category are 

the following:

a. Intentional Torts to Persons

• Battery: A harmful or offensive contact with the 

plaintiff’s person by the defendant.

• Assault: A reasonable apprehension in the plaintiff of an 

immediate harmful or offensive contact with his person 

by the defendant.

• False Imprisonment: The defendant’s confining or 

restraining the plaintiff to a bounded area; in certain 

cases confining the plaintiff’s personal property may 

give rise to a suit alleging false imprisonment.

• False Arrest: A special category of false imprisonment 

involving the invalid use of the defendant’s legal 

authority to confine the plaintiff.

• Intentional Infliction of Emotional Distress: The 

infliction of emotional distress on the plaintiff by a 

defendant who has engaged in extreme and outrageous 

conduct.

b. Intentional Torts to Property

• Trespass to Land: Damage to real property.
629

• Trespass to Chattels: Damage to personal property.

• Conversion: Personal property, theft.

21.6 The Federal Tort Claims Act (FTCA) 

In 1946, Congress enacted the Federal Tort Claims Act 

(FTCA). This act makes the United States liable under the 

local law of the place where the tort occurs for the negligent or 

wrongful acts or omissions of federal employees within the 

scope of their employment in the same manner and to the same 

extent as a private individual under like circumstances.

The purposes of the FTCA are two-fold: (1) to provide persons 

injured by the torts of federal employees with an appropriate 

remedy against the United States (a waiver of sovereign 

immunity); and (2) to protect federal employees from personal 

liability for torts committed within the scope of their 

employment (absolute immunity).

Under the FTCA, a “federal agency” includes the executive 

departments, the judicial and legislative branches, the 

military departments, and corporations primarily acting as 

instrumentalities or agencies of the United States, but 

expressly excludes any contractor with the United States.

Under the FTCA, an “employee of the government” includes 

officers or employees of any federal agency, members of the 

military or naval forces of the United States, members of the 

National Guard while engaged in training or duty, and persons 

acting on behalf of a federal agency in an official capacity.

21.6.1 Negligent Torts

The FTCA covers lawsuits for negligent or wrongful acts or 

omissions of federal employees acting within the scope of their 

employment that cause loss of property, personal injury or 
630

death. This remedy against the United States is exclusive of 

any other civil action or proceeding for money damages by 

reason of the same subject matter against the employee whose 

act or omission gave rise to the claim. In those cases, where 

the federal government has waived its sovereign immunity 

from torts, a tort action against the United States is the sole 

remedy available to a plaintiff. A suit against the individual 

federal employee is precluded under the FTCA, however the 

FTCA does not provide protection against lawsuits for 

constitutional torts asserted under Bivens. 

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. 

21.6.2 Intentional Torts 

The FTCA specifically does not apply to intentional torts 

committed by federal employees who are not law enforcement 

officers. However, intentional torts such as assault, battery, 

false imprisonment, false arrest, and malicious prosecution 

are common allegations against law enforcement officers. As a 

result, the Act was amended to provide additional protection 

for federal “investigative and law enforcement officers.” 

The term “investigative or law enforcement officer” means any 

officer of the United States who is empowered by law to: (1) 

execute searches; or (2) seize evidence, or (3) make arrests for 

violations of federal law. Any one or more of these criteria will 

qualify. The FTCA now provides that if the act was that of an 

investigative or law enforcement officer, the government will 

permit itself to be sued with respect to assault, battery, false 

imprisonment, false arrest, malicious prosecution, or abuse of 

process so long as the law enforcement officer was acting 

within the scope of their employment. 
631

21.6.3 Scope of Employment

“Scope of employment” is defined by determining whether the 

employee was performing the employer’s (federal government) 

business at the time of the occurrence. All the facts and 

circumstances surrounding the incident are considered to 

make this determination. Factors such as the employee’s job 

description and any agency policies promulgated through 

directives and general orders must also be taken into account.

“Scope of employment” can be limited in a number of different 

ways. Law enforcement officers for some agencies and 

departments have broad authority to investigate and arrest 

anywhere for any federal crime. Others are limited to certain 

federal offenses or certain defined geographical areas. 

Exceeding these limitations can mean that the law 

enforcement officer is outside the scope of employment.

Generally, federal law enforcement officers who intervene in 

purely state and local criminal offenses are outside the scope 

of employment. There is no affirmative duty to intervene and, 

therefore, no civil liability for failure to do so. However, 

intervention in state and local incidents can create liability for 

both the individual federal law enforcement officer and the 

agency or department when there would otherwise be none. 

Even though states may grant varying degrees of peace officer 

status, up to full protection, to federal law enforcement 

officers, many agency and department policies prohibit officers 

and agents from getting directly involved in state and local 

incidents.

a. The Federal Law Enforcement Officers “Good 

Samaritan” Laws

Many federal officers and agents are reluctant to become 

involved in state criminal violations for fear of being outside 

their scope of employment. As a result, Congress enacted 
632

legislation (28 U.S.C. § 1442 and 28 U.S.C. § 2671) that 

broadens the meaning of “scope of employment” to protect 

federal law enforcement officers from state criminal violations. 

The legislations applies only to law enforcement officers as 

defined in 5 U.S.C. § 8401(17).

Not every federal law enforcement officer is covered, but for

those that are, the Act provides that they are within the scope 

of employment when taking reasonable action, including the 

use of force: (1) to protect an individual in the presence of an 

officer from a crime of violence; or (2) to provide immediate 

assistance to individuals who have suffered or who are 

threatened with bodily harm; or (3) to prevent the escape of 

any individual whom the officer reasonably believes to have 

committed a crime of violence in the presence of the officer .

In essence, the legislation extends the federal scope of 

employment to non-federal crimes of violence being committed 

in the federal officer’s presence. It does not expand federal 

arrest authority. Because this law is still relatively new, the 

contours of its protections are not clearly defined. Does it 

obligate the Department of Justice to provide legal counsel to 

the federal officer or agent? Does it mandate that the United 

States indemnify the officer or agent for any damages should 

the claim be successful? There are no clear answers. There 

remains a real risk that intervening in purely state and local 

incidents will be outside the scope of employment and outside 

the purview of the FTCA, exposing the individual officer or 

agent to personal, civil liability.

b. Scope of Employment and Government Vehicles

Another common scope of employment issue involves the use 

of government vehicles. When is the use of a government 

vehicle considered outside the scope of employment? Agency or 

department policies and procedures generally outline

authorized and prohibited uses. State law often defines scope 
633

of employment in the use of government vehicles in terms of 

“official business” and “personal frolic.” State laws vary over 

how much of a deviation (both in purpose and distance) is 

required to put the use outside the scope of employment.

A law enforcement officer found to have used a government 

vehicle outside the scope of employment will not be protected 

by the FTCA and will, therefore, be personally liable for the 

injury and damages caused. Therefore, KNOW, 

UNDERSTAND, AND FOLLOW pertinent agency policies and 

procedures. Once the facts are determined, the law of the state 

where the alleged injury occurred is applied to decide whether 

the employee was “within the scope of employment.”

c. Certification That Employee Was Acting Within 

the Scope of Employment

When presented with a claim, the agency makes the initial 

decision on scope of employment. If the agency refuses to 

certify that the employee was acting within the scope of 

employment, the employee may request the Attorney General 

to so certify. Upon certification by the Attorney General that 

the defendant employee was acting within the scope of 

employment at the time of the incident on which the claim is 

based, the United States will be substituted as the party 

defendant. If the Attorney General refuses to certify scope of 

employment, the employee may petition the U.S. District 

Court to find and certify that the employee was acting within 

the scope of employment.

21.6.4 Initiating a Civil Lawsuit under the FTCA

Before initiating a civil lawsuit against the government, a 

claimant must first exhaust administrative remedies such as 

filing a claim under the FTCA. 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 
634

conclusive and constitutes a complete release of any claim 

against the United States and the employee of the government 

whose act or omission gave rise to the claim. The claimant may 

file suit only after the claim has been administratively denied 

or the claimant has refused the Government’s final offer of 

settlement. 

The United States District Court has exclusive jurisdiction 

over civil actions on FTCA claims against the United States. 

Furthermore, the trial in district court will be without a jury. 

A tort claim against the United States is barred unless it is 

presented in writing to the appropriate federal agency within 

two years of the date of the injury or damage. Suit may be filed 

beyond that two-year limit so long as it is within six months of 

the date of the final denial of the claim by the agency to which 

it was presented. 

The absolute immunity afforded federal employees under the 

FTCA against personal liability for torts does not apply in a 

Bivens action alleging a constitutional tort. Instead, the 

federal officer will likely rely upon qualified immunity 

regarding a constitutional tort claim. 

21.6.5 Defenses to Negligent and Intentional Torts 

There are several common defenses available to every 

defendant to the extent that the defenses are recognized in the 

state where the tort occurred. 

a. To Negligent Torts 

• Assumption of Risk: If a plaintiff has voluntarily placed 

himself or herself in a position of harm, knowing the 

dangers involved, the defendant will not be responsible 

for the subsequent injury to plaintiff. Plaintiff has 

assumed the risk of such injury. 
635

• Contributory/Comparative Negligence: If the plaintiff 

has been negligent, and that negligence is a cause of the 

plaintiff’s damages, then, depending on the law of the 

state where the incident occurred, the plaintiff may be 

prevented from recovering anything against the 

defendant or may have the recovery apportioned 

according to the degree of culpability of each.

b. To Intentional Torts

• Consent: Knowing and voluntary consent by plaintiff 

will bar recovery against defendant. However, 

defendant’s actions must stay within the bounds, or 

scope of the consent.

• Self-Defense and Defense of Others: Reasonable force 

may be used to defend against harmful or offensive 

bodily contact. “Reasonable force” is a fact-intensive 

concept.

• 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.
636

 
637

Chapter 22 - 

 

Report Writing – Legal Aspects 

22.1 Introduction ............................................................. 637

22.2 Definition of a Law Enforcement Report ................. 638

22.3 The Role a Report Plays in the Criminal and Civil 

Justice Systems ................................................................... 639

22.3.1 The Public ...............................................................639

22.3.2 Prosecutors..............................................................639

22.3.3 Defense attorneys ...................................................640

22.3.4 The Court................................................................640

22.3.5 Civil Attorneys........................................................641

22.4 Problems Associated with a Poorly-Written Report 641

22.5 Necessary Components for Establishing Reasonable 

Suspicion and Probable Cause in a Report ......................... 642

22.5.1 Reasonable Suspicion .............................................642

22.5.2 Probable Cause .......................................................643

22.6 Facts That Support the Fourth Amendment’s 

Objective Reasonableness Standard ................................... 645

22.6.1 Factors Evaluated By the Court............................646

22.6.2 Facts Versus Conclusions.......................................647

_______________________________________________________

22.1 Introduction 

An effective and well-articulated police report, created as 

close-in- time as possible after a law enforcement encounter, is 

critically important. The initial report represents an officer’s 

first, best, and sometimes only opportunity to plainly and 

clearly set forth all critical facts known to the officer at the 
638

time of the encounter and all of the relevant factors that went 

into an officer’s decision-making process. A well-written report 

provides a solid foundation for any criminal or civil case that 

follows. Such a report will also prove invaluable to an officer 

who is called upon to testify weeks, months, and sometimes 

years after an event has occurred.

Just as a well-written report provides a solid foundation for all 

future criminal and civil proceedings, a poorly-written report 

can undermine subsequent prosecutions, open an officer and 

his employing agency up to civil liability, and provide an 

attorney conducting cross-examination of the officer with 

ammunition to impeach or undermine his or her credibility on 

the witness stand. This chapter focuses on the legal 

requirements and best practices involved in the critical skill of 

report writing.

22.2 Definition of a Law Enforcement Report 

A law enforcement report is an official record of a law 

enforcement agency. Its purpose is to accurately and concisely 

summarize facts and events which transpire during an 

encounter or incident occurring in the course of a law 

enforcement officer’s official duties.

A report should include all important, relevant, and significant 

events which occurred during the encounter, but not every 

detail. The writer should not attempt to create a transcript, 

but rather a thorough statement of the relevant facts and 

information. A report should be written in plain and 

commonly-understood language (no police jargon) so that 

citizens who are unfamiliar with police work can thoroughly 

understand the situation confronting the officer and all 

relevant factors that led to the officer’s actions and why they 

were taken.
639

22.3 The Role a Report Plays in the Criminal and Civil 

Justice Systems 

Once a report is created and made an official record of the law 

enforcement agency, that report can be used for various 

purposes, depending on the subject of the report. 

22.3.1 The Public 

With just a few exceptions, police reports are public records 

subject to disclosure under freedom of information act laws. 

Every report should be written in plain language with the 

overall goal that a citizen who knows nothing about police 

work can pick up the report, read it, and understand what 

happened and why an officer took the action they took in any 

given situation. For example, when the officer has a legal basis 

to frisk an individual for weapons or hard objects as allowed 

by Terry v. Ohio, 392 U.S. 1 (1968), the officer should clearly 

and plainly articulate the facts which led him or her to 

conclude that the subject was presently armed and dangerous. 

For example, a mere statement that the subject “posed a threat 

to the officer’s safety” as a rationale for a Terry frisk would be 

insufficient as it fails to inform the reader why the subject 

posed a threat and why the officer reasonably suspected that 

the individual was presently armed and dangerous.

22.3.2 Prosecutors 

Outside the law enforcement agency, the prosecutor will likely 

see the report first. The prosecutor’s office will use reports to 

determine if they should charge the suspect with a crime. If a 

report’s purpose is to establish probable cause for an arrest, it 

must contain enough information as to each and every element 

of the crime investigated. A prosecutor is more likely to accept 

the case and file charges when given a well-worded, accurate, 

and complete report. 
640

Even after a case has been accepted for prosecution, reports 

continue to play a key role in its success or failure. Remember, 

prosecutors learn about cases through second-hand 

knowledge; they do not usually conduct their own independent 

investigations. They gain knowledge regarding the strengths 

and weaknesses of their case primarily through reports. 

Inaccurate, incomplete, or poorly- articulated police reports 

can undermine the strength of a prosecution and undermine 

the credibility of witnesses who are later called to testify 

regarding facts that are not set forth clearly and completely 

within a police report.

22.3.3 Defense attorneys

Defense attorneys will have access to law enforcement reports 

through the discovery process. They will use reports to gather 

information about the case against their clients and evaluate 

the strength of the case. For example, if a report omits facts 

necessary to establish that the officer complied with the 

Fourth, Fifth, or Sixth Amendments of the Constitution when 

interacting with their client, a defense attorney will have little 

choice but to file motions with the court requesting evidentiary 

hearings before the Court in an effort to get the charges 

dismissed or evidence suppressed. Poorly articulated, 

confusing, or factually insufficient reports are almost certain 

to prompt such motions. On the other hand, well-written and 

factually accurate reports are more likely to generate a quick 

resolution to the case and result in fewer trips to court for the 

officers involved.

22.3.4 The Court

Although police reports are generally not admissible to prove 

a crime, they may be considered by courts for a number of 

purposes including: determining conditions for pretrial release 

of offenders; evaluating whether an evidentiary pre-trial 

hearing is appropriate; setting parameters for witnesses’ 
641

testimony during direct and cross- examination; determining 

probable cause at probation violation hearings; identifying 

victims’ losses at restitution hearings; and calculating of 

sentencing guidelines.

22.3.5 Civil Attorneys

Civil attorneys will thoroughly evaluate the contents of a 

police report when evaluating the strength and viability of a 

potential lawsuit against a police agency, individual officer(s), 

or both. For example, when a use of force report fails to fully 

explain the facts and circumstances that went into an officer’s 

decision to use force, this lack of detail will make attorneys 

more likely to file suit (e.g. alleging excessive force, 

unreasonable searches and/or seizures and other 

constitutional violations).

22.4 Problems Associated with a Poorly-Written Report 

While a well-written report provides a solid foundation for 

subsequent criminal and civil litigation, a report lacking 

sufficient detail regarding the facts and circumstances of an 

event can undermine an officer’s credibility, sabotage criminal 

prosecution, and open the officer and his department up to 

scrutiny, criticism, and an increased potential for long and 

drawn-out civil litigation. For example:

• When critical facts and circumstances are omitted from 

a report, an officer who later attempts to testify to the 

omitted facts or circumstances will be subject to intense 

cross- examination on the witness stand. An effective 

cross- examination will suggest to the jury that your 

failure to include critical facts or circumstances was a 

result of sloppy report writing (at best) or outright 

fabrication of facts to justify your actions (at worst). A 

well-written report is an officer’s best friend and ally on 

the witness stand.
642

• The effects of a poorly written report can also be felt in 

civil trials. When an officer’s use of force report fails to 

set forth all of the critical factors that an officer 

considered when deciding to use force, detain or arrest a 

subject, or conduct a search, the officer’s decisionmaking is more likely to be challenged in court in a civil 

lawsuit. 

• A lack of important detail within a report can also 

undermine a criminal prosecution. A prosecutor may 

decline to issue charges when critical facts are missing 

from a report. If charges are issued, the missing facts are 

likely to form the basis of a well-crafted defense strategy 

at trial. 

22.5 Necessary Components for Establishing Reasonable 

Suspicion and Probable Cause in a Report 

A report must be written with the overall objective of 

identifying all facts and circumstances relied upon by the 

officer to meet the legal requirements for conducting a Terry 

stop, a Terry frisk, a seizure, and/or search of an individual in 

accordance with Fourth Amendment precedent. 

22.5.1 Reasonable Suspicion 

Reasonable suspicion for a Terry Stop and/or Frisk. An officer 

must have reasonable suspicion that criminal activity is afoot 

and that the suspect is involved to conduct a Terry stop and 

reasonable suspicion that the subject is presently armed and 

dangerous to conduct a Terry frisk. Terry v. Ohio. Courts look 

to the “totality of the circumstances” to determine whether 

reasonable suspicion exists. Factors a court might consider 

(and therefore factors we should include in our report) includes 

all information obtained from reliable sources. To name just a 

few: 
643

• The officer’s personal observations and knowledge 

including such factors as recent criminal activity, the 

time and location of the encounter, a suspect’s flight 

coupled with other factors, and a suspect’s prior criminal 

or violent history if known to the officer at the time the 

action is taken. 

• Information from other law-enforcement sources such as 

other officers, NCIC, and BOLOs (i.e. collective 

knowledge). 

• Information from identified third parties (witnesses and 

victims). 

• Anonymously provided information so long as the 

information provided has been corroborated by the 

officer or otherwise found to be reliable under the 

totality of the circumstances. Illinois v. Gates, 462 U.S. 

213 (1983).

• The length of a Terry stop and the scope of a Terry frisk. 

A Terry stop which takes longer than is reasonably 

necessary for the officer to rule in or rule out criminal 

activity may be viewed by a court as an arrest requiring 

probable cause. Similarly, the Terry frisk of an 

individual or an automobile which goes beyond a 

reasonable attempt to locate weapons or hard objects 

may be viewed by a court as a search requiring probable 

cause. 

22.5.2 Probable Cause 

The Fourth Amendment provides that “...no Warrant shall 

issue but upon Probable Cause...” Probable cause is also 

required before an individual may be arrested for a criminal 

violation. “Probable cause is a fluid concept – turning on the 
644

assessment of probabilities in particular factual contexts – not 

readily, or even usefully, reduced to a neat set of legal rules.” 

Illinois v. Gates, 462 U.S. 213, 232 (1983). See also, Maryland 

v. Pringle, 540 U.S. 366 (2003). Courts will evaluate the 

totality of circumstances to determine whether an officer’s 

search and/or seizure was done with the requisite level of 

probable cause. Officers may rely upon the same types of facts 

and circumstances typically used to establish probable cause. 

A report must carefully document all of the facts and 

circumstances relied upon when concluding that there is a 

sufficient legal basis to conduct an arrest and/or search. 

Compare and contrast the following descriptions an officer 

might use to establish reasonable suspicion and/or probable 

cause: 

CONCLUSIONS FACTS

Officer observed

‘suspicious

conduct’ andpreassault 

indicators

Officer observed suspect pacing

continuously; wore heavy jacket in 

100 degree heat; scanning the area;

shifting weight; clenching fists; 

looking around for witnesses or 

exits which, based on officer’s

training, suggests that an

individual is planning to assault

the officer.

Officer observed

‘furtive gestures’

Officer observed subject, upon seeing 

officer, reach quickly into an area out of 

the officer’s view; subject concealed 

object in wheel well of a nearby vehicle 

upon officer’s arrival 

Officer was in a

‘high crime area’

Officer was in a known high-crime 

area based upon the number of arrests 

that occur in this area, the types of 

arrests, officer’s personal observations, 

statistics, crime complaints
645

Officer observed 

subject that 

matched 

description

Suspect was a white male, 

approximately 6’2” tall, 180 lbs., 

brown hair, green jacket, black pants, 

brown baseball cap, driving a white 

late model sedan heading north on 

Elmhurst Ave. BOLO was for a white 

male about 6’2” with brown hair and a 

green jacket driving a late model 

white sedan.

Further discussion on reasonable suspicion and probable cause 

can be found in the Fourth Amendment chapter in this book.

22.6 Facts That Support the Fourth Amendment’s Objective 

Reasonableness Standard 

Details matter. All claims of excessive force, deadly or not, are 

analyzed under the Fourth Amendment’s objective 

reasonableness standard. To determine whether a particular 

use of force is reasonable under the Fourth Amendment, courts 

will evaluate the “totality of the circumstances” surrounding 

its use. An effective use of force report must therefore contain 

a clear and complete description of all relevant circumstances 

that confronted an officer at the time a decision to use force 

was made. In many instances, the difference between a 

‘reasonable’ and ‘unreasonable’ use of force under the Fourth 

Amendment boils down to a single fact or circumstance. For 

example, use of deadly force upon an unarmed suspect might 

be considered unreasonable but for the fact that poor lighting 

conditions in the area, combined with the way the suspect was 

holding an otherwise harmless object (such as a cell phone), 

would lead an objectively reasonable officer to believe that the 

item in the suspect’s hand was a gun. If an officer fails to fully 

describe the location of this encounter including a detailed 

account of the poor lighting conditions, a court might conclude 

that the officer’s use of force was unreasonable.
646

22.6.1 Factors Evaluated By the Court 

Recall that the factors cited by the Court in Graham v. Connor, 

490 U.S. 386 (1989), for evaluating a use of force incident 

under the Fourth Amendment are: 

• Severity of the crime; 

• Whether the suspect is an immediate threat to the safety 

of the officer or others; 

• Whether the suspect is actively resisting arrest; and 

• Whether the suspect is attempting to evade arrest by 

flight. 

In addition, factors other courts have considered when 

evaluating the reasonableness of an officer’s decision to use 

force include: 

• The number of suspects and officers involved; 

• The size, age, and condition of the officer and suspect; 

• The duration of the action; 

• Whether the force applied resulted in an injury; 

• Previous violent history of the suspect if known to the 

officer at the time; 

• The use of alcohol or drugs by the suspect; 

• The suspect’s mental or psychiatric history if known to 

the officer at the time; 

• The presence of innocent bystanders who could be 
647

harmed if force is not used;

• The availability of weapons, such as pepper spray,

batons or Tasers.

When sitting down to draft a use of force report, an officer 

should run through the factors listed above in order to 

determine which, if any, of the factors were present during the 

underlying incident. Reference to these factors can provide an 

officer with a sold starting point when sitting down to draft the 

narrative portion of a use of force report. Although reference 

to these factors can provide a useful starting point, they should 

only be used as a guide. The ultimate goal must always be to 

identify all of the critical factors and circumstances 

confronting the officer at the time a decision to use force was 

made in a very logical, easy-to-understand, and thorough 

manner.

22.6.2 Facts Versus Conclusions

A well-written report contains facts - not conclusions - that are 

sufficient to convince the reader that the officer’s actions were 

reasonable under the circumstances. A well-written use of 

force report will avoid the use of conclusions and will instead 

describe the scene factually. Compare and contrast the 

following descriptions an officer might use to justify a use of 

force encounter:

CONCLUSIONS FACTS

Subject was ‘assaultive’ His right hand was balled in a 

fist, and his arms were 

extended stiffly downward and 

slightly away from his body. 

The handgun appeared firmly 

grasped in Turner’s hand, and 

I observed his left index finger 

on the trigger.
648

Subject was ‘noncompliant’

Turner did not respond 

verbally, acknowledge my 

presence or commands, or 

deviate from his pace or track 

as he continued toward the 

door. I repeated the 

commands, with no response.

Subject was ‘resistant’ Subject pulled away; folded 

arms; ‘1000-yard stare’; flexed 

arm muscles; became rigid; hid 

behind an object; was 

unresponsive to physical force.

Additional discussion on use of force and the objective 

reasonableness standard can be found in the Use of Force 

chapter in this book.
649

Chapter 23 - 

 

Use of Force – Legal Aspects 

23.1 Introduction ............................................................. 650

23.1.1 Graham v. Connor ..................................................650

23.1.2 The Facts in Graham..............................................650

23.1.3 The Objective Test and the Reasonable Officer....651

23.1.4 The “No 20/20 Hindsight” Rule..............................655

23.1.5 Perfect Answers vs. Range of Reasonableness .....656

23.1.6 The Graham Factors – Reasons for Using Force ..656

23.1.7 The Severity of the Crime ......................................657

23.1.8 The Immediacy of the Threat ................................657

23.1.9 Actively Resisting Arrest .......................................657

23.1.10 Attempting to Evade Arrest by Flight...................658

23.1.11 Other Factors ..........................................................658

23.2 Deadly Force ............................................................ 659

23.2.1 Tennessee v. Garner...............................................660

23.2.2 Result in Tennessee v. Garner - Qualified 

Immunity...................................................................661

23.2.3 Scott v. Harris.........................................................663

23.2.4 Plumhoff v. Rickard................................................665

23.2.5 The “So Called” Provocation Doctrine ...................666

23.2.6 Myths vs. Reality....................................................669

23.3 Intermediate Weapons ............................................. 670

23.3.1 The Nature of the Intrusion...................................670

23.3.2 The Governmental Interest at Stake ....................671

23.3.3 Immediate Threat...................................................672

23.3.4 Control vs. Compliance and the Time Factor .......673

23.4 Myths vs. Reality ..................................................... 674

23.5 After the Fight ......................................................... 675
650

23.1 Introduction 

“How will I be judged by a court of law if someone sues me for 

using excessive force?” That is a fair question from a law 

enforcement officer. This chapter focuses on the legal aspects 

for using force in the course of an arrest, investigatory stop, or 

other seizure of a free citizen. 

 

23.1.1 Graham v. Connor 

The leading case on use of force is the 1989 Supreme Court 

decision in Graham v. Connor, 490 U.S. 386 (1989). The Court 

held, “...that all claims that law enforcement officers have 

used excessive force – deadly or not – in the course of an arrest, 

investigatory stop, or other seizure of a free citizen should be 

analyzed under the Fourth Amendment and its objective 

reasonableness standard...” 

 

A seizure occurs when a law enforcement officer terminates a 

free citizen’s movement by a means intentionally applied. This 

includes the application of physical force to the body of a 

person with intent to restrain, even if the person does not 

submit and is not subdued. 

 

Traffic stops, investigative detentions, and arrests are all 

Fourth Amendment seizures. To seize someone, an officer may 

yell “Stop!” The officer may use handcuffs, a baton, or firearm 

to make him stop. A seizure must be objectively reasonable – 

meaning reasonable in its inception, the degree of force used, 

and its duration. This chapter focuses on reasonable force. The 

Fourth Amendment chapter discusses when, and for how long 

someone can be seized; but they all go to the overall question 

– was the seizure objectively reasonable? 

23.1.2 The Facts in Graham 

Mr. Graham was a diabetic. He felt the onset of an insulin 
651

reaction, called his friend, Mr. Berry, and asked for a ride to a 

convenience store. Graham hoped to buy some orange juice. He 

thought that the sugar in the juice would counteract the 

reaction. 

 

After the two men arrived at the store, Graham got out of the 

car and “hastily” went inside. Unfortunately, the check-out 

line was too long and Graham “hastily” returned to the car, got 

in, and told Berry to drive to another friend’s house – maybe 

this friend would have some juice. 

 

Waiting and watching outside the store was Officer Connor. 

Connor had watched Graham hastily enter and leave the store 

and suspected something was amiss. Connor activated his 

overhead lights signaling Berry to stop. Berry tried to explain 

that his friend was just having a “sugar reaction” but Connor 

was not convinced. Connor told the two men to wait at their 

car and directed another officer to return to the store to 

determine what happened. Things got worse from that point. 

Graham got out of the car. He ran around the car two times, 

sat down on the curb, and momentarily passed out. Back-up 

officers arrived. According to Graham, he was violently placed 

into the backseat of a cruiser. All this time, Berry, and Graham 

(after he regained consciousness) tried to explain that Graham 

was just having an insulin reaction. But their pleas had no 

effect. One officer commented that he thought Graham was 

drunk. 

 

Officer Connor finally received the report from the officer that 

returned to the store. Nothing was amiss, and Graham sued. 

But how should Officer Connor and the other officers be 

judged? The case was appealed all the way to the Supreme 

Court. The Court stated that the officers should be judged 

under the Fourth Amendment’s objective reasonableness test. 

23.1.3 The Objective Test and the Reasonable Officer
652

The Court stated, “The reasonableness of a particular use of 

force must be judged from the perspective of a reasonable 

officer on the scene, rather than with the 20/20 vision of 

hindsight.” Reasonableness at the moment applies. The Court 

went on, “... the question is whether the officers’ actions are 

objectively reasonable in light of the facts and circumstances 

confronting them, without regard to the underlying intent or 

motivation." 

 

Graham’s objective standard judges officers through the lens 

of a reasonable officer; therefore, the subjective beliefs of the 

officer himself – whether good or bad – are not relevant. 

Objective reasonableness is always based on facts, whereas 

someone’s subjective opinion may not be. For instance, it may 

have been Officer Connor’s subjective opinion that Graham 

was shoplifting when he ran out of the store. But facts make 

force objectively reasonable. To seize someone in accordance 

with the Fourth Amendment, Officer Connor must articulate 

facts (... what he saw, heard, smelled, tasted, or touched) that 

support his conduct (the force used). 

 

Was Officer Connor’s conduct (the force he used) reasonable? 

The Supreme Court said this was the relevant question. What 

follows are some facts and circumstances that could cause a 

court to find that the force was reasonable. Some of these facts 

are for illustrative purposes, only, and are not in the Graham 

decision. The following hypothetical use of force reports are 

intended for instructional purposes only and are not quotes 

from Office Connor’s report. 

 

For example, Officer Connor might write in his use of force 

report: 

 

“I saw Mr. Graham run into the store. Only seconds later, I 

saw him run back out and get into Berry’s car. I heard the tires 

screech as the car drove away at a high rate of speed.” 
653

 

Based on those facts, what could a reasonable officer say? The 

Supreme Court’s decision in Terry v. Ohio states that an officer 

may conduct a temporary investigative detention based on 

reasonable suspicion that criminal activity is afoot. 

 

An officer’s training and experience is also relevant. Connor 

might add: 

 

“Based on what I saw, and my department having received no 

less than four complaints of shoplifting from this store within 

the past two weeks, I activated my overhead lights and stopped 

the car.” 

 

Connor would be admitting to effecting a Fourth Amendment 

seizure; but a seizure is objectively reasonable if he can 

articulate a factual/objective opinion that criminal activity is 

afoot. 

 

The officer should help the court visualize what happened. We

call this “painting the picture.” Using good action verbs (i.e., 

what you saw or heard) in a written report helps paint the 

picture. Connor might write: 

 

“After Berry stopped, I walked to his car. Both men said that 

Graham was having a diabetic reaction, but I was not 

convinced. I told both men to get in the car. I ordered another 

officer to go back to the convenience store and find out what 

happened. Then Graham got out of the car. Graham opened 

the passenger door. He ran around the car two times, sat down 

on the curb, and fell over as if he had passed out.” 

 

Mere opinions are not helpful in an objective analysis. 

Objective opinions/conclusions, on the other hand, are 

supported by fact. They can help paint the picture. Connor 

might state: 

“I believed that Graham was under the influence of alcohol 
654

based on my experience with intoxicated people. I have 

watched people under the influence of drugs or alcohol many 

times. They are generally irrational. Graham was irrational; 

he ran around the car two times after I (a police officer) told 

him to wait at the car. Then he sat on the curb and fell over -

as if he passed out.” 

 

Connor might add: 

 

“Graham’s eyes were glassy. His speech was slurred. His 

breath smelled sweet, as it may after drinking alcoholic 

beverages.” (The breath of someone suffering from a diabetic 

reaction may smell the same.) Referring back to his training 

and experience, Connor could explain why intoxication is 

relevant. “I know that many assaults on police officers are 

committed by people under the influence of alcohol or 

narcotics.” (Darrell L. Ross, “Assessing Patterns of Citizen 

Resistance During Arrest,” FBI Law Enforcement Bulletin 

1999.) 

 

Mere conclusions/opinions are not supported by fact. If an 

officer’s statement makes you ask “how or why do you believe 

that?” the officer is probably stating a mere opinion. Note the 

differences: 

 

• Fact: “I ordered the two men to stay in the car.

Instead, Graham got out.” 

 

• Mere Opinion: “Graham was non-compliant.” 

 

“Cop talk” is seldom supported by fact. For example, what is a 

“furtive movement” or “pre-assault indicator?” Fuzzy words 

like “indicated, suggested, or implied” are generally 

unsupported. The question becomes, “How did he suggest what 

you want me to believe?” Note the differences: 

 

• Facts: “I ordered the suspect to keep his hands on the 
655

steering wheel of the car. Instead, he reached under the 

seat with his right hand. 

 

• Cop talk: “The suspect made a furtive movement” 

 

• Fuzzy word: “He indicated that he was going for a 

weapon.” 

 

Good fact articulation is not as easy as it may seem. High 

stress affects human perception. Officers may experience 

tunnel vision, auditory exclusion, and even memory loss; 

however, they should try to paint the picture with the sights 

and sounds they remember. While the officer may not 

remember exactly what the suspect said, the officer may 

remember that “He screamed at me and clenched his fists like 

a boxer.” 

23.1.4 The “No 20/20 Hindsight” Rule 

The term, “20/20 hindsight” means that by looking back at a 

situation we can generally see clearly (with 20/20 vision) what 

could have been done better. Graham obviously steers clear 

from that type of second-guess. Reasonableness at the moment 

applies. See Graham. Indeed, it is not enough to say what the 

officer should have done, or even what a reasonable officer 

would do under the same circumstances. The existing law 

must clearly put the officer on notice that his conduct was 

unlawful in the specific context of the case (the facts 

confronting him). If the existing law is not clear, the case 

against the officer is dismissed on grounds of qualified 

immunity. See Pearson v. Callahan, 555 U.S. 223 (2009); Scott 

v. Harris, 550 U.S. 372, 378 (2007); and Sheehan v. San 

Francisco, 575 U.S. 600 (2015). 

 

Looking back at what happened to Mr. Graham, the force 

seems unreasonable. Now we know (from the officer that 

returned to the store) that Graham had committed no crime. 
656

However, using the backup officer’s report would violate the 

hindsight rule. The report was not a fact confronting Connor 

at the time. Here, the hindsight rule probably worked to 

Officer Connor’s advantage; but what if Connor had learned 

the next day that Graham had a violent criminal record? It 

would not be a fact confronting him at the time. 

23.1.5 Perfect Answers vs. Range of Reasonableness

If we could ask Officer Connor what he would do differently, 

he might say, “Knowing what I do now, I would have bought 

Mr. Graham a bottle of orange juice.” But there are seldom 

perfect answers in situations where “reasonableness at the 

moment applies” and “...officers [are] forced to make splitsecond judgements – in circumstances that are often tense, 

uncertain, and rapidly evolving...” See Graham. Telling the 

officer what he should have done, is often to judge him by 

hindsight. Obviously, there may be more than one way to effect 

a seizure - and while hindsight may prove one option better 

than another - what matters is whether the officer’s conduct 

fell within the range of reasonableness based on what he 

confronted at the time. Using too little force is not a 

constitutional violation, but may unnecessarily endanger the 

officer or others. 

23.1.6 The Graham Factors – Reasons for Using Force 

Whether a particular use of force is reasonable requires a 

careful balancing of the nature of the intrusion on the suspect’s 

liberty (the officer’s conduct/or force he used) against the 

countervailing governmental interest at stake (the facts 

confronting the officer). The rubber meets the road, so to 

speak, when we apply the facts to Graham and other factors 

for using force. The Graham factors act like a checklist of 

possible justifications for using force. They are not a complete 

list; not all of them apply in every case; nor should they be 

considered in a vacuum. (We’ll explain those principles 
657

shortly.) The Graham factors are: the severity of the crime, the 

immediacy of the threat, whether the suspect was actively 

resisting arrest, and whether the suspect was attempting to 

evade arrest by flight. 

23.1.7 The Severity of the Crime 

The “severity of the crime” generally refers to the reason for 

seizing someone in the first place. Officer Connor may have 

been acting under a reasonable suspicion that Graham stole 

something from the store. Arrests and investigative detentions 

are traditional, governmental reasons for seizing people – and 

officers may use reasonable force to affect them. Generally, the 

more serious the crime at issue, the more intrusive the force

may be. 

 

Not all of the Graham factors apply in every case. For example, 

there may be a reasonable justification for seizing a person 

who is not suspected of a crime. Consider a paranoid 

schizophrenic committed to a hospital. Reasonable force may 

also be used to control the movements of passengers during a 

traffic stop. Pennsylvania v. Mimms, 434 U.S. 106 (1977); 

Maryland v. Wilson, 519 U.S. 408 (1997). When executing a 

warrant in a home, reasonable force may be used to detain the 

occupants in or around the premises. Michigan v. Summers, 

452 U.S. 693 (1981). The operative word in any Fourth 

Amendment analysis is reasonableness. 

23.1.8 The Immediacy of the Threat 

Immediacy of the threat is generally considered the most 

important Graham factor. Is the suspect a threat to the officer, 

to others, or himself? Generally speaking, the greater the 

threat, the greater the force that is reasonable. 

23.1.9 Actively Resisting Arrest 
658

Resisting an arrest or other lawful seizure prevents the officer 

from effecting an arrest or investigating a crime. What’s more, 

the nature of the resistance may even pose a threat. 

23.1.10 Attempting to Evade Arrest by Flight 

Flight, like resistance, may also pose a threat. In short, we do 

not examine the Graham factors in a vacuum. Consider the 

Supreme Court’s decision in Scott v. Harris. In Scott, the 

severity of the crime at issue (at least initially) was speeding, 

but Mr. Harris fled and a high-speed pursuit ensued. Speeds 

reached upwards of 100 miles per hour. The roads were wet 

and it was night. Pedestrians were forced off the road and 

Harris even rammed a police car. Even conceding that the 

severity of the crime was only a misdemeanor, Harris’s flight 

by means of a two-ton vehicle posed a significant threat and 

“deadly force” to stop him was not unreasonable. 

 

Now apply the facts in Graham. The offense at issue was 

possible shoplifting; and the initial intrusion on Graham’s 

liberty was sitting in a car while waiting for a report about 

what happened at the store. But as the encounter developed, 

the intrusion on Graham’s liberty became much greater. The 

issue: Was it objectively reasonable to handcuff and forcibly 

push Mr. Graham into the back of a patrol car? Recall that 

Officer Connor told Graham to wait at the car. Graham 

resisted that order. He got out. Add that to evidence of possible 

intoxication, and also to the fact they were on a busy road. Was 

it objectively reasonable to believe that Graham might cause a 

traffic accident – that he was a threat to others? To himself? 

23.1.11 Other Factors 

The Graham factors are not a complete list. While the lower 

courts have listed other factors, most are a subset of 

immediacy of the threat. For example, the number of suspects 
659

verses the number of officers may affect the degree of threat. 

Initially, it was Officer Connor against two suspects. Also 

affecting the degree of threat is the size, age, and condition of 

the suspect confronting the officer. Is the suspect 75 years-old 

and frail – or is he 25 years-old, 6’ tall, and weighing 250 

pounds? The duration of the action is important. For example, 

the officer may have to resort to a baton because struggling 

with a suspect for a prolonged period can be physically 

exhausting. 

 

Criminal history or psychiatric history are important, but 

reasonable force always depends on the facts. Paranoid 

schizophrenia and resistance did not justify shocking a man 

several times with an electronic control device. Armstrong v. 

Village of Pinehurst, 810 F.3d 892 (4th Cir. 2016). While the 

man had been involuntarily committed, he had committed no 

crime. Surrounded by police officers and hospital staff, he 

became frightened and grabbed a pole. After refusing to 

release his grip, an officer shocked him several times with a 

Taser. The static stalemate did not create an immediate 

threat, nor justify the force. 

 

Finally, time is an important factor. See Graham, 490 U.S. at 

397. The calculus for reasonableness must embody allowance 

for the fact that police officers are often forced to make splitsecond judgments - in situations that are tense, uncertain, and 

rapidly evolving - about the amount of force that is necessary 

in a particular situation. When a robbery suspect reaches 

towards his waistband, a police officer may have a split-second 

to make a decision. But not every situation is like that. 

Consider the paranoid schizophrenic that grabbed the post. 

There was time to consider other, less intrusive options besides 

shocking him. 

23.2 Deadly Force 
660

A “deadly force” case generally refers to a situation where the 

officer shot the suspect with a firearm. There is not an exact 

definition of what “deadly force” is, or even when it can be 

used. See Scott v. Harris, 550 U.S. 372, 384 (2007). Shooting a 

fleeing suspect in the back of the head, for example, is certainly 

deadly. However, striking someone with a baton could also 

pose a high likelihood of serious injuries – though not 

necessarily the same as shooting him in the head. 

 

Each case requires us to weigh the nature of the intrusion (the 

force used by the officer) against the countervailing 

governmental interest at stake (the facts confronting the 

officer). Firing a bullet into someone’s body is obviously a very 

high intrusion on liberty and requires a commensurately 

strong governmental interest. Some of the federal circuit 

courts use a probable cause standard to describe when 

shooting is objectively reasonable: based on the facts and 

circumstances confronting the officer at the time, was it 

reasonable to believe that the suspect probably posed a 

significant threat of serious bodily harm to the officer or 

others. Probable cause is a common-sense, all things 

considered standard for assessing probabilities in a particular 

situation. 

23.2.1 Tennessee v. Garner 

In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme Court 

held that it was unreasonable to kill an unarmed burglary 

suspect by shooting him in the back of the head. Garner ran 

out of the house where the officer was investigating a home 

burglary. The officer yelled stop, but Garner continued to flee 

and managed to reach and climb to the top of a fence. At that 

point, the officer had two options let Garner escape to the other 

side of the fence, or shoot. The officer shot Garner in the back 

of the head and he died a few hours later on the operating 

table. 
661

 

The officer candidly admitted that he did not believe that 

Garner posed a significant threat and never tried to justify his 

actions on any basis other than the need to prevent an escape. 

To the officer’s credit, Tennessee law at that time (1974) 

authorized all necessary force to stop a fleeing felon, and the 

officer assumed the law allowed him to shoot Garner. But the 

Supreme Court held that the Tennessee statute was 

unconstitutional in so far as it authorized the use of deadly 

force to stop any fleeing felon. 

 

The Garner decision came before Graham; however, by 

applying the facts to what would become the Graham factors 

we can understand how the Court reached its decision. The 

severity of the crime was burglary and Garner attempted to 

evade arrest by flight. But that was all. The governmental 

interest at stake was not strong enough. The Court stated, “It 

is not better that all felony suspects die than that they escape.” 

23.2.2 Result in Tennessee v. Garner - Qualified 

Immunity 

This is a good place to ask what happened to the officer. The 

officer was sued for excessive force, but it seems unfair that he 

should be made to suffer the burdens of litigation in this case. 

After all, Tennessee state law authorized deadly force at the 

time. Even more, the Garner decision was not reached until 

1985 – 11 years after the shooting. 

 

The officer requested and received qualified immunity. 

Qualified immunity is the officer’s defense to standing trial in 

a civil case for a constitutional tort. (Qualified immunity is not 

an available defense in a criminal case.) It is raised by the 

officer well in advance of trial. When raised, the burden is on 

the plaintiff (the person suing the officer) to present sufficient 

facts that the officer violated a clearly established 

constitutional right. Since the constitutional law was not clear 
662

when the officer shot Garner, the civil case against him was 

dismissed. 

 

The rationale behind qualified immunity is two-fold. First, it 

permits officers to perform their duties without fear of 

constantly defending themselves against insubstantial claims 

for damages. On the other hand, it allows a plaintiff to recover 

damages when the facts support a clear violation of a 

constitutional right. 

 

We can describe qualified immunity as a contract that police 

officers have with the federal courts. The officer’s part of the 

contract is to use constitutional force (i.e., force that falls 

within the range of reasonableness). Still, the officer’s conduct 

may fall outside that range, as it did in Garner. In that case, 

the question is essentially whether the courts lived up to their 

end of the bargain. Was the law clearly established at the 

time? The officer only breaks the contract when he violated a 

clearly established constitutional right. 

 

It is not enough to say what the officer should have done, or 

even what a reasonable officer would do under similar 

circumstances. The existing law must clearly put him on notice 

that his conduct (the force used) was unlawful in the specific 

context of the case (the facts confronting him). The matter 

must be beyond debate. If not, the case against the officer is 

dismissed. We can say that the officer’s conduct was objectively 

lawful at the time. 

 

In short, there are two ways to get qualified immunity. The 

judge may find that (1) the force was constitutional; or (2) that 

the officer’s conduct did not violate clearly established 

statutory or constitutional rights of which a reasonable officer 

would have known at the time. In addition, the judge is not 

required to go in any particular order. The judge may simply 

find that the law is not clear, and save the harder 

constitutional question for another day. 
663

 

So when is an officer denied qualified immunity, and what 

happens? To defeat the officer’s request, the plaintiff’s version 

of what happened must show that the officer’s conduct 

amounted to: (1) a constitutional violation that (2) was clearly 

established at the time. If denied qualified immunity, the case 

may proceed to trial. 

 

So why not just hold the officer liable if the judge finds he 

violated clearly established statutory or constitutional rights? 

Why is there a need for a trial? The answer is simple. Recall 

that qualified immunity is raised before the actual trial, and if 

granted, the plaintiff’s case is dismissed. Dismissing the case 

denies the plaintiff his day in court. Before the judge can 

dismiss the case, however, the judge must consider the facts in 

a light most favorable to the plaintiff. The judge must be able 

to say, “Mr. Plaintiff, I have considered your version of what 

happened. No reasonable jury could find for you...based on 

your version of the facts.” Only in that case is it fair to deny 

the plaintiff his day in court. 

 

It is not uncommon for there to be a material dispute between 

the plaintiff and the officer about the facts. If the officer has a 

different story, the judge may send the case to trial to resolve 

the dispute. But denying the officer qualified immunity does 

not always mean he is liable. At trial, credibility becomes a 

factor. The jury may believe the officer’s version of what 

happened. 

23.2.3 Scott v. Harris 

Let’s change the facts in Garner. Instead of a burglary suspect, 

what if a murder suspect was at the top of the fence – and the 

officer had two options – shoot, or let the murder suspect 

escape? Tennessee v. Garner provided an example as to when 

deadly force might be reasonable in that case: 

 
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If...there is probable cause to believe that [the 

suspect] has committed a crime involving the 

infliction or threatened infliction of serious 

physical harm, deadly force may be used if 

necessary to prevent escape, and if, where feasible, 

some warning has been given. 

 

The Garner example envisions someone who would pose an 

inherent danger to society if allowed to escape. In Scott v. 

Harris, 550 U.S. 372 (2007), Mr. Harris essentially argued that 

the Garner example established a per se rule – meaning, it was 

the only situation where deadly force could be used to stop a 

fleeing suspect (i.e., only if he posed an inherent danger to 

society). The Court disagreed. 

 

Mr. Harris was speeding one night when an officer signaled for 

him to stop. Harris admitted that he did not stop; that a highspeed chase ensued; and that an officer finally pushed him off 

the road – stopping his flight by ramming the rear bumper of 

Harris’s car. Harris was nearly killed in the crash. Harris 

argued that ramming his car was deadly force, and 

unreasonable according to the Garner example. He was a 

speeder, not a murderer or someone who would pose an 

inherent danger if allowed to escape. 

 

The Supreme Court was “...loath to lay down a rule requiring 

police to allow fleeing suspects to get away whenever they 

drive so recklessly that they put others’ lives at danger.” 

What’s more, Garner did not establish a magical on/off switch 

that triggers rigid preconditions whenever an officer’s actions 

constitute “deadly force” or even when the officer can use it. 

 

Each case requires an application of the facts to Graham and 

relevant factors for using force. Even assuming that the 

severity of the crime at issue was only speeding, Harris fled. 

But this was no foot chase, like Garner. This was flight by 

means of a two-ton vehicle. Harris raced down narrow, two-
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lane roads in the dead of the night, and at speeds in excess of 

85 miles per hour. Harris swerved around more than a dozen 

other cars, crossed the double yellow line, and forced other cars 

off the road to avoid being hit. He ran multiple red lights and 

traveled for considerable periods of time in the occasional 

center left-turn-lane. Harris did all that while being chased by 

numerous police cars. Harris even rammed one of the police 

cruisers. Pushing him off the road was not unreasonable, even 

if the force was highly likely to have deadly effects. 

 

Scott established the relationship between Graham, Garner, 

and cases to come. Graham is the test for judging all excessive 

force claims. The test is objective reasonableness. Garner, on

the other hand, is only an example as to when deadly force 

(force highly likely to have deadly effects) is reasonable. Every 

case goes back to Graham. There are no per se rules. Each case 

requires an application of the facts to the Graham and other 

factors for using force. 

23.2.4 Plumhoff v. Rickard 

Scott v. Harris left open under what circumstances shooting at 

a fleeing motorist might be reasonable. That question was 

answered in Plumhoff v. Rickard, 572 U.S. 765 (2014). Like 

Mr. Harris, Mr. Rickard started a high-speed pursuit after a 

minor traffic offense. The chase exceeded 100 miles per hour 

and lasted over five minutes. Rickard passed more than two 

dozen vehicles, several of which were forced to alter course. He 

eventually collided with a police car and came to a temporary 

standstill. Still, Rickard promised to continue the chase. With 

his front bumper flush against a police car, Rickard hit the 

accelerator causing the tires to spin. 

 

Officer Plumhoff fired the first three shots into Rickard’s car. 

Undeterred, Rickard threw the car into reverse. As he started 

to drive away, 12 more shots were fired into the car. Rickard 

crashed and he and his passenger, Kelly Allen, died of some 
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combination of gunshot wounds and injuries from the crash. 

 

The lower court refused to grant the officers qualified 

immunity believing that there were significant differences 

between this case and Scott; specifically, (1) Rickard was only 

traveling 4 or 5 miles per hour when deadly force was used; (2) 

Rickard had a passenger in the car; and (3) the officers fired a 

total of 15-rounds into the car. 

 

The Court disagreed. Qualified immunity is not so much about 

the factual differences in a case, but whether the officers 

violated clearly established statutory or constitutional rights. 

They did not. The Court also answered each of the differences 

mentioned by the lower court. While traveling much slower 

than Harris, Rickard still promised to continue his dangerous 

flight when he hit the accelerator. But were 15-shots 

necessary? The Court stated they were all fired to end the 

threat. And what about the passenger? The Court stated that 

the question was whether the officers violated Rickard’s 

Fourth Amendment rights, not Ms. Allen’s. (There is some 

disagreement among lower courts as to whether a passenger 

in this situation can recover under a Fourth Amendment 

theory.) 

23.2.5 The “So Called” Provocation Doctrine 

Police officers are often required to make decisions under 

circumstances that are “...tense, uncertain, and rapidly 

evolving...” For a profession required to make them, qualified 

immunity is an important defense. If a decision goes bad, and 

it may in that uncertain moment, the law must be clear. If not, 

the case is dismissed on grounds of qualified immunity. 

 

Qualified immunity prevents judges from second guessing 

police officers. Consider the Supreme Court decision in San 

Francisco v, Sheehan, 135 S. Ct. 1785 (2015). Teresa Sheehan 

was living in halfway house for people suffering from mental 
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illness. She was not taking her medications and had become a 

danger to others. When a social worker entered her room, she 

told him to get out, that she had knife, and that she would kill 

him. Two police officers arrived intending to take Sheehan to 

a hospital. When they entered her room, Sheehan grabbed the 

knife and forced the officers to retreat back to the hallway. 

 

From the hallway, the officers had some options. One was to 

wait for backup. But what if Sheehan escaped out of a window 

and harmed someone else? And what would her family say if 

Sheehan harmed herself while left alone in her room, with a 

knife? The officers went back inside. Predictably, Sheehan 

charged again with the knife, and predictably (her lawyers 

would argue) the officers were forced to shoot her. 

 

The issue before the Supreme Court was not whether it was 

reasonable to enter Teresa Sheehan’s room without a warrant. 

They could. This was an emergency, a well-defined exception 

to the warrant requirement. Deadly force to seize Ms. 

Sheehan, viewed at least from the moment of the shooting, was 

also reasonable. The issue was over the Ninth Circuit’s 

provocation doctrine. The Ninth Circuit denied the officers 

qualified immunity believing that the officers provoked the 

deadly encounter by going back inside the room (i.e., they 

should have waited for backup). 

 

The Supreme Court reversed. Focusing only on the second 

element of the qualified immunity analysis, the Court found 

wanting any robust consensus of precedent that would have 

put any reasonable officer on notice as to when, or under what 

circumstances, the officers could re-enter the room. 

 

Had the officers subdued Sheehan without incident, they 

probably would have been lauded as heroes. Unfortunately, 

their plan had tragic consequences. But before they can be 

forced to face the burdens of litigation, the law must be clear. 

Existing Supreme Court and circuit court decisions must be 
668

such that any reasonable officer would know that re-entering 

the room was unconstitutional. In that way, qualified 

immunity prevents judges from second guessing police officers 

when things go wrong. 

 

In Sheehan, the Court saved the constitutional question about 

the Ninth Circuits provocation doctrine for another day. In Los 

Angeles v. Mendez, 137 S. Ct. 1539 (2017), the Court 

reconsidered it. The issue: Can a different Fourth Amendment 

violation transform a reasonable use of force into an 

unreasonable seizure? 

 

Mendez was different from Sheehan in that the officers 

unlawfully entered the Mendez home. They did not have a 

warrant or reasonable exception to the warrant requirement, 

like an emergency exception. The officers were looking for an 

escaped parolee. When they came upon the Mendez home (a 

shack, but nonetheless the Mendez home) an officer pulled 

back a blanket serving as a door. Inside, the officers found only 

the Mendez couple napping on a futon. Mr. Mendez raised 

himself, picked up a BB gun [kept for shooting rats], and 

pointed it towards the officers. The BB gun looked like a rifle. 

An officer yelled, “Gun!” and the officers fired 15 rounds into 

the shack, seriously injuring Mr. and Mrs. Mendez. 

 

The lower court held that deadly force was reasonable 

according to Graham. After all, the facts confronting the 

officers at the time supported a significant threat. However, 

the lower court also believed that the warrantless entry into 

the home provoked the deadly encounter, and therefore, 

transformed a reasonable use of force into an unreasonable 

seizure. 

 

The Supreme Court stated, 

 

That is wrong. The framework for analyzing 

excessive force claims is set out in Graham. If 
669

there is no excessive force case under Graham, 

there is no excessive force claim at all. To the 

extent that a plaintiff has other Fourth 

Amendment claims, they should be analyzed 

separately. 

 

Several take-aways come from these cases. First, Graham is 

the test for judging excessive force claims. We apply the facts 

confronting the officer at the time to the Graham factors. That 

said, officers are also responsible for clear violations of other 

constitutional rights. While a startled homeowner that reaches 

for a gun may pose a significant threat – requiring the officer 

to shoot in self-defense – the owner may nonetheless recover 

on a theory that his injuries were the proximate cause of 

another constitutional violation, say, an unreasonable search. 

The bottom line: Police officers must know and follow clearly 

established law. 

23.2.6 Myths vs. Reality 

No subject is plagued with more myths than use of force. 

 

• Myth: Don’t fire unless fired upon. 

 

The reality is that waiting for the suspect to take the first shot 

... or waiting for the suspect to point the gun ... or waiting to 

see the gun, may be too late for the officer. Objectively 

reasonable force requires an application of the facts to the 

Graham factors. When the facts support a reasonable belief 

that the suspect poses a significant threat, deadly force is not 

unreasonable. 

 

Graham allows officers to react to the threat of violence, rather 

than violence itself. 

 

• Myth: Deadly force can only be used as a last resort. 

 
670

Use of force policies often state that deadly force can only be 

used as a last resort ... or that officers must use the minimal 

amount of force... and even then, they should always give a 

warning. But law enforcement agencies cannot make law. The 

Graham standard, which is the legal standard, is objective 

reasonableness. 

 

• Myth: Never shoot an unarmed person, and never shoot 

someone in the back. 

 

Whether someone poses a significant threat of serious bodily 

harm requires an application of the facts to the Graham 

factors. Someone fleeing the scene of a traffic stop may not be 

armed in the traditional sense, but his flight by means of a 

speeding vehicle may still pose a significant threat. Consider 

the facts at the time, and determine whether the suspect poses 

a significant threat of serious bodily harm to the officer or 

others. 

23.3 Intermediate Weapons 

Batons, electronic control devices (ECDs), and oleoresin 

capsicum (OC) spray are often called intermediate or less than 

lethal weapons. The test for using one is the same. We weigh 

the nature of the intrusion (the force used) against the 

countervailing governmental interest at stake (the facts 

confronting the officer). We apply those facts to the Graham

and other relevant factors to determine whether the force was 

objectively reasonable. 

23.3.1 The Nature of the Intrusion 

Earlier we said that there is not an exact definition of what 

deadly force is or when it can be used. Nor is there an exact 

definition of when or how an intermediate weapon can be used. 

For example, it may be reasonable to hold a baton at port-arms 

to gently push a protestor back to the sidewalk, or it may be 
671

used to crush someone’s skull. Generally speaking, however, 

batons and other intermediate weapons are used in a less than 

lethal manner. While not like shooting someone, they are 

generally believed to be a significant intrusion on someone’s 

liberty and require a commensurately strong governmental 

interest. 

 

Oleoresin Capsicum (OC) spray comes from the oily extract of 

the cayenne pepper plant and creates a deep burning sensation 

and makes breathing difficult. Electronic control devices 

(ECDs) come in two modes – dart and drive-stun. Experts have 

testified that ECDs may cause abnormal heartbeat leading to 

stoppage and death. On the other hand, a National Institute of 

Justice panel determined that there is no conclusive evidence 

that indicates a high risk of serious injury to humans from 

short-term ECD exposure in healthy, non-stressed, nonintoxicated persons. Statistically, ECDs carry a significantly 

lower risk of injury than physical force. John H. Laub, 

Director, National Institute of Justice, Study of Deaths 

Following Electro Muscular Disruption 31 (2011). 

 

In the dart mode, the ECD propels a pair of “probes,” or 

aluminum darts into the suspect. When the darts strike, the 

ECD delivers an electrical charge through the wires into the 

suspect’s muscles. The charge momentarily overrides the 

central nervous system and incapacitates the suspect. In the 

drive-stun mode, the officer pushes two electric contacts 

located on the front of the ECD directly against the suspect. 

The drive-stun delivers an electronic shock. It does not 

override the central nervous system like the dart-mode, but is 

painful and may cause a struggling suspect to release his grip 

on something. (The Physical Techniques Division at the 

FLETC provides electronic control device training to students. 

The students are issued the manufacturer’s warnings.) 

Attention to these warnings can help the officer stay within 

the range of reasonableness. 

23.3.2 The Governmental Interest at Stake
672

Intermediate weapons generally fall within the range of 

reasonableness when the suspect poses an immediate threat. 

The threat does not necessarily have to be deadly. But police 

officers do not have to risk the threat of being punched, kicked 

or bitten while doing their job. 

23.3.3 Immediate Threat 

Intermediate weapons generally fall within the range of 

reasonableness when the suspect poses an immediate threat. 

The severity of crime at issue may support use of an 

intermediate weapon. Consider an armed robbery suspect that 

refuses the officer’s order to lay on the ground. But if we 

change the facts, we can change the answer. Assume the 

offense at issue was drunk driving. The same threat and 

urgency to get the suspect on the ground may not exist. 

 

Consider another case where a patrolman stopped a truck 

driver for a minor traffic violation. The driver became 

immediately confrontational. “Get that flashlight out of my 

eyes” he stated. The officer asked for license and registration 

five times. Instead, the driver ranted and raved by the 

highway, “Why don’t you just take me to f---ing jail” and “I 

don’t have to kiss your damn a—because you’re a police 

officer.” After the fifth request, and without warning the truck 

driver, the officer shot the man with an electronic control 

device (ECD) in dart-mode. He fell and was taken to jail. 

Reasonable? The officer lawfully stopped the truck driver for a 

traffic violation. And failure to provide documentation 

(registration and license) was an arrestable offense. While the 

truck driver claimed that he would have obeyed the officer’s 

arrest commands, the officer believed that arrest commands 

would only escalate an already tense and difficult situation 

into a more serious struggle. The facts supported the officer. 

Draper v. Reynolds, 369 F.3d 1270 (2004). 

 
673

Each use of an intermediate weapon must be objectively 

reasonable. In another case, the suspect advanced on the 

officer while holding a baseball bat. The first three 

deployments of an ECD against the suspect were not excessive. 

The suspect was obviously an immediate threat. However, the 

next seven deployments of the ECD were deemed excessive, as 

by this time the suspect had been disarmed, brought to the 

ground, and restrained by several officers. Meyers v. 

Baltimore County, 713 F.3d 723 (4th Cir. 2013). 

 

Combative resistance generally poses a credible threat. 

Factors to consider are the number of officers and the size, 

height, weight, and condition of the suspect compared to the 

officers. Consider a suspect that bites, scratches, punches, or 

kicks. 

 

Mechanical resistance is when the suspect’s resistance is not 

directed at the officer; instead, the suspect grabs ahold of 

something to thwart the officer’s attempts to control him. Time 

is an important factor in such a case. Is there time to consider 

other, less intrusive options than an intermediate weapon? 

23.3.4 Control vs. Compliance and the Time Factor 

Intermediate weapons have posed a challenge to the courts, to 

the officers using them, and to law enforcement trainers. 

When do they fall within the range of reasonableness? The 

Supreme Court has not ruled definitively. Some circuit courts 

have held that an officer does not violate the Fourth 

Amendment by using an ECD to control the active resistance 

of a suspect. See Hagans v. Franklin Co. Sheriff’s Office, 695 

F.3d 505, 509 (6th Cir. 2012); See also Crowell v. Kirkpatrick, 

400 F. App’x, 592 (2nd Cir. 2010), using a stun-drive ECD to 

force a protester to release herself from a heavy barrel to which 

she had chained herself did not violate the Fourth 

Amendment. She was told to leave, was warned that the ECD 

would be used, was told that it was painful, and was given the 
674

opportunity to release herself before subsequent applications. 

 

Others hold that active resistance, alone, is not enough and 

that an ECD may only be used when a police officer is 

confronted with an immediate threat. See Armstrong v. 

Pinehurst, 810 F.3d 892, 903 (4th Cir. 2016.) It would be 

unreasonable to use a stun-drive ECD simply to remove an 

arrestee from a car in a circuit requiring an immediate threat, 

even after the arrestee stiffened her body and clutched the 

steering wheel to frustrate the officers’ efforts. See Brooks v. 

City of Seattle, 661 F.3d 433 (9th Cir. 2011). 

 

So how does the officer get the suspect out of the car? To quote 

one judge, “There are only so many ways that a person can be 

extracted from a vehicle against her will, and none of them is 

pretty.” See. 

 

Federal law enforcement officers are assigned to various 

circuits, and they must be aware of current caselaw that might 

affect them. Officers must be reasonable anywhere the work. 

 

Understanding the difference between control and compliance 

is a step in the right direction. Intermediate weapons are 

control tools, not compliance tools. Simple statements that 

“The suspect was non- compliant” or “He didn’t do what I said” 

are never enough. Finally, “time” is an important factor. And 

this may be the key to being reasonable in any circuit. If the 

suspect is not an immediate threat, there is generally time to 

consider other less intrusive options. 

23.4 Myths vs. Reality 

• Myth: ECDs have been credited with reducing injuries 

to suspects and officers alike; therefore, they can used 

anytime the suspect disobeys the officers’ orders. 

 

Part of that statement is true. ECDs have been credited with 
675

reducing injuries. But ECDs are also a significant intrusion on 

someone’s liberty and require a commensurately strong 

governmental interest. 

 

• Myth: The law does not require an officer to re-assess a 

suspect’s resistance after using an ECD because the pain 

is only temporary. 

 

Each use of an ECD (or each use of any intermediate weapon, 

for that matter) must be objectively reasonable. Objective 

reasonableness always requires an application of the facts to 

the Graham and other factors. 

 

• Myth: An officer does not have a duty to de-contaminate 

a suspect after using OC spray so long as the initial use 

was reasonable. 

 

Custody triggers the officer’s duty to render aid. Officers 

should decontaminate the suspect and provide other necessary 

aid, when reasonable. 

 

• Myth: Agency policy is the law. 

 

Agency policy is not the law. The Supreme Court established 

the law in Graham v. Connor. Agency policies may establish 

restrictions on using force and officers may suffer 

administrative sanctions for violating them. If sued, however, 

the court will apply the objective reasonableness standard. 

23.5 After the Fight 

Taking a suspect into custody creates a duty to care for him. 

Jones v. City of Cincinnati, 507 F. App’x. 463 (6th Cir. 2012) 

citing Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir. 

2012). Consider the following: 

 

• As soon as the suspect is handcuffed, get him off his 
676

stomach, and belt him inside the car in the seated 

position. In-custody deaths may result from positional 

asphyxia – i.e., death as a result of positioning the 

suspect’s body in a way that interferes with his ability to 

breathe. 

 

• Monitor the suspect carefully and obtain medical 

treatment if needed. If it’s reasonable to believe that the 

suspect is under the influence of controlled substances, 

ask for the name of the drug and amount taken. Do not 

assume that the suspect is “playing possum.” Seek 

medical care on his request. (The Miranda Public Safety 

Exception allows police officers to ask questions that are 

reasonably related to the safety of the suspect, the 

officer, or others.) 

 

• If the suspect is not breathing or there is other evidence 

that he suffers from a serious medical condition, call 

EMS, apply CPR, and provide first aid as necessary. 

 

• Inform the detention facility’s custodians of any medical 

problems. 

FLETC 

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