Document text
LEGAL HANDBOOK
FOR
SPECIAL AGENTS
PAGES REVIEWED - 137 A
PAGES RELEASED - 137
O
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3-13
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08/20/03 Table of Contents08:58 58
LHBSAIN - LEGAL HANDBOOK FOR SPECIAL AGENTS INTRODUCTION
SECTION O FOREWORD AND INSTRUCTIONS FOR USING THIS
LHBSAP1 ~ LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
SECTION 1 PROBABLE CAUSE
DEFINITION
RELEVANT INFORMATION
APPLICATION OF THE STANDARD
SOURCES OF FACTS
COMUNICATING THE FACTS
REVIEW AND APPROVAL OF COMPLAINTS AND AFFIDAVITS
PREPARATION GUIDELINES FOR PROBABLE CAUSE STATEMENT
DELETED
SECTION 2 AFFIDAVITS AND COMPLAINTS
BACKGROUND
DELETED
DELETED
DELETED
DELETED
MOVED TO APPENDIX 8-1
DELETED
DELETED
SECTION 3 ARREST
ISSUANCE OF ARREST WARRANTS
CRIMINAL LIABILITY-ESCAPEARREST
ARREST
PROMPT
USE OF
MANNER
SEARCH
MEDIWITH WARRANT
WITHOUT WARRANT
APPEARANCE BEFORE MAGISTRATE See 7-16 and
FORCE See MIOG, Part 2, 11-1.1 !
OF ENTRY See 5-2.1 and MIOG, Part 2,
INCIDENTAL TO ARREST
ATTENTION FOR ARRESTEES See MIOG Part 2, CAL ,
FOREIGN NATIONALS See MIOG, Part II, ll-2.3.3.!ARRESTS IN FOREIGN COUNTRIES See MIOG, Part II,
DIPLOMATIC IMMUNITY See 5-11.!
NEWS MEDIA MEMBERS See MAOP, Part II, 5-7.1 and MIOG,
ARMED FORCES PERSONNEL
SERVICE OF SUBPOENAS
ARREST
SECTIONOF JUVENILES See MIOG, Part 2, 4-1.1.!
4. INVESTIGATIVE DETENTION
IN GENERAL
DETENTION
LIMITED SEARCH FOR WEAPONS
OTHER APPLICATION OF DETENTION AUTHORITY
SECTION 5 SEARCH AND SEIZURE
IN GENERAL See 8-3.2 and MIOG, Part 1, Sect1on 91-9,
SEARCH UNDER SEARCH WARRANT
INTRODUCTION EXCEPTIONS T0 THE SEARCH WARRANT
SEARCH BY CONSENT
EMERGENCY SEARCHES See Appendix, 4-1.!
SEARCH INCIDENTAL TO ARREST See 3-8 and MIOG, PartMOTOR VEHICLE EXCEPTION Formerly 5-7 1!
INVENTORY SEARCHES
MARKING EVIDENCE FOR IDENTIFICATION Formerly 5-8!SEARCHES BY U S CUSTOMS SERVICE Formerly 5-9!
DIPLOMATIC IMUNITY Formerly 5-10!
- ._,WnWTT....,- ._< .. WWW ,
I 6
I 7
I 9
_ 1
I 2
I 3
I 4
CASES5-12
5-13
- 1
7-12
7-13
7-14
7-15
7-16
7-17
7-1s
7-19
7-207-21
7-22
7-23
7-24
7-25
7-26
7-27
7-2s. -.... |nl|l92ll>l9292 n|<| 1| xll. I,
FIRST AMENDMENT PRIVACY PROTECTION Formerly 5-11!SEARCH FOR DOCUMENTS IN POSSESSION OF THIRD PARTIES
SECTION 6. EYEWITNESS IDENTIFICATION
IN GENERAL
LINEUPS
SINGLE SUSPECT CONFRONTATIONS
PHOTOGRAPHIC IDENTIFICATION See MIOG, Part I,SECTION 7 CONFESSIONS AND INTERROGATIONS
IN GENERAL See MIOG, Part 2, Section 7.!
VOLUNTARINESS
WARNING OF RIGHTS
WAIVER OF RIGHTS See LHBSA, 7-2 1 !.!
INTERVIEW OF SUBJECT BY U.S. ATTORNEY
INTERVIEW UNDER OATH See 7-12.15 and MIOG, Part I,
DELETED
RECORDING or INTERVIEWS Formerly 7-14! See 7-9.3.!
INTERVIEW LOGS See MIOG, Part I, 263-5.1 !.!
INTERPRETERS
PLEA BARGAINING
PREPARATION OF SIGNED STATEMNTS See MAOP, Part II,RETENTION OF INTERVIEW NOTES See MAOP, Part II, 10-12,
IDENTITY OF INTERVIEWING AGENTS See MIOG, Part 2,
INTERVIEWS IN FOREIGN COUNTRIES See MIOG, Part II,
APPEARANCE BEFORE U.S MAGISTRATE
MOVED TO 7-14
REMOVAL OF PRISONER FROM CUSTODY OF U.S MARSHAL
PRESENCE OF COUNSEL DURING INTERVIEW See MIOG, Part
PRESENCE OF STENOGRAPHERS
EVIDENCE OF FEDERAL INCOME TAX VIOLATIONS See MIOG,
REQUEST TO SEE JUDGE OR U S MARSHAL
QUESTIONING ABOUT SIMILAR CRIMES
PROTECTING IDENTITY OF INFORMANTS
DELETED
REQUEST TO USE TELEPHONE
LEGAL ADVICE BY AGENTS See MIOG, Part 2, 7-2 1.!
ADVICE OF CHARGE, LOCAL CUSTODY
SECTION B INFORMANTS AND ENTRAPMENT
IN GENERAL See MIOG, Part I, Section 137.!
INFORMATION REGARDING LOCAL CRIMES
LEGAL LIMITATIONS
- DISCLOSURE OF INFORMANTS IDENTITY
1-1
2-1
3-1SECTION 9. CIVIL AND CRIMINAL LIABILITY
IN GENERAL See 3-4 3 and MIOG, Part 1, Section 197 !
CLAIMS AGAINST THE GOVERNMENT
SUITS AGAINST THE EMPLOYEE
CRIMINAL LIABILITY
LEGAL REPRESENTATION See 9-4 and MIOG,
DISCLOSURE OF OFFICIAL FBI INFORMATIONPart 1, 197-4 !
Table of Contents
LHBSAXO - LEGAL HANDBOOK FOR SPECIAL AGENTS APPENDIX
APPENDIX 1 FD26 - CONSENT TO SEARCH
FD-26 - CONSENT TO SEARCH
APPENDIX 2 FD-395 - ADVICE OF RIGHTS
FD-395 - ADVICE OF RIGHTS See LHBSA, Part 1, 7-3.3.!
APPENDIX 3 . FD-404 - YOUR RIGHTS AT A LINEUP
FD-404 - YOUR RIGHTS AT A LINEUP
APPENDIX 4. SELECTED FEDERAL CIRCUIT COURTS OF APPEALSTl , UIL4. ulllllillillll
I Iwmw" mmI _
4-1
I 5
_ 5-1
_ 6.
_ 6-1
_ 7
GOVERNMENT
_ 7-1
_s
_ e-1_ n 92|-1 ~mI~||Il92.A mwum||uu
SELECTED FEDERAL CIRCUIT COURTS OF APPEALS CASES THAT AREAPPENDIX 5 . FEDERAL JUDICIAL CIRCUITS MAP
FEDERAL JUDICIAL CIRCUITS MAP
APPENDIX 6. FORFEITURE AND ABANDONED PROPERTY MATTERS
FORFEITURE AND ABANDONED PROPERTY MATTERS SEE FORFEITURE
APPENDIX 7 ETHICAL STANDARDS FOR ATTORNEYS FOR THE
ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT
APPENDIX 8 SEARCH WARRANT UPON ORAL TESTIMONYSearch Warrant Upon Oral Testimony
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SENSITIVEManl-ID: LHBSAIN LEGAL HANDBOOK FOR SPECIAL AGENTS INTRODUCTION
SECTION O. FOREWORD AND INSTRUCTIONS FOR USING THIS HANDBOOK
**Ef£Dte: 04/28/1978 MCRT#: 0 Div: D9 Cav: SecCls:
O-1 FOREWORD AND INSTRUCTIONS FOR USING THIS HANDBOOK
The Legal Handbook for Special Agents is not
intended to be a treatise on the law. Rather, it is designed
as a compilation of basic principles of constitutional and
criminal procedural law in those areas of greatest concern to
the Agent-Investigator. It is written in understandable
language and incorporates, where possible, applicable Bureau
policy.
This handbook was prepared by the|0ffice of the General I
Counsel|based on Supreme Court decisions or, in those areas I
where the Supreme Court has not addressed a particular legal
issue, on an analysis of lower Federal court decisions. The
main body of the handbook contains the general rules in effect -
for each area of the law discussed. Appendix 4 at the end of
the handbook contains information on selected Federal circuit
courts of appeals cases that are in conflict, in whole or in
part, with the general rule. Therefore, in using the hand-
book, Agent-Investigators are required to scan Appendix 4 for
any special rules in effect in their circuit, in addition to
locating the general rule in the main body of the handbook.
Appendix 4 is broken down by section Search and Seizure, Pro-
bable Cause, Confessions, etc.!; therefore, Special Agents need
not review the entire Appendix each time the handbook is used.
Local policies and practices of U.S. Magistrates
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and U.S. Attorneys often vary from district to district. Any
such local rules, not contrary to stated Bureau policy, should
be deemed supplementary to instructions contained in this
handbook.
The handbook will be revised from time to time as
the law and Bureau policy change. It has been prepared in a
handy size and form, and Special Agents are encouraged to have
it available in the course of an investigation.
**srrm== 09/09/1994 l'lCRT#: 281 Div: D9 Cav: SecC1s:
*********************************** END OF REPORT *****************************
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SECTION 1. PROBABLE CAUSE
**EffDte: 04/28/1978 MCRT#: 0 Div: D9 Cav: SecC1s:
1-1 DEFINITION
| l! Probable cause is a reasonable belief based on
available facts and circumstances, and the logical inferences that canbe drawn from them. It is determined by the totality of the facts and
circumstances, as viewed from the perspective of a reasonable law
enforcement officer.
! The probable cause standard is one of probability,not certainty; thus, it is significantly lower than the "proof beyond
a reasonable doubt" standard necessary to support a criminal
conviction.|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
1-2 IRELEVANT INFORMATION
Any relevant, reliable, legally obtained information maybe used to establish probable cause, even though that same information
may be excluded from trial by a rule of evidence. For example,
probable cause may be based in whole or in part on hearsay secondhand! information even though the rules of evidence generally exclude
hearsay evidence from a trial. Likewise, a defendant's prior criminalrecord may be relevant to the issue of probable cause even though thatsame information may not be admissible to prove his/her guilt at
trial.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
1-3 |APPLICATION or was STANDARD]
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
1-3.1 |General
Probable cause is the level of proof required by the
Fourth Amendment to support the issuance of warrants to arrest or to
search and by statute to obtain a court order to intercept
communications. It is also the Fourth Amendment standard for
WARRANTLESS ARRESTS, and for CERTAIN WARRANTLESS SEARCHES~-e.g.,
emergency searches for evidence, the vehicle exception, etc.|
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**E£fDte:
An arrest
arrest is
**E£fDte:
available
crime has
crime or
are being
described
**EffDte:
1-A
firsthand
1-4.1
**EffDte:
1-4.207/26/1999 HCRT#: 915 Div: D9 Cav: SOCCII2
l-3.2 |Probable Cause to Arrest
The constitutional validity of every arrest, whether madewith or without a warrant, depends upon the existence of PROBABLECAUSE AT THE MOMENT THE ARREST IS MADE. Evidence obtained subsequent
to the arrest cannot be used retrospectively to justify the arrest.
by warrant ensures that a magistrate judge or a grand juryhas predetermined the existence of probable cause. A warrantless
valid if a federal offense-felony or misdemeanorr-is
committed in the presence of Agents, or, if the arresting Agents haveprobable cause to believe that a federal felony was committed by the
person being arrested.
07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
1-3.3 |Probable Cause to Search
When probable cause is required to justify a search-e.g.,search warrant, emergency search, or the vehicle except1on-the
facts and circumstances must support the conclusion that a
been committed, that items sought are connected with that
are persons for whose arrest there is probable cause, or who
unlawfully restrained!, and that the described items orpersons are presently located or soon to be located at a particularly
place.|
07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
ISOURCESIOF FACTS
|Facts to establish probable cause may be based on
perceptions of an ent, or they may be obtained fromsecondhand sources hearsay!f?
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
|Firsthand Knowledge
Firsthand knowledge consists of information obtaineddirectly through the senses-~i.e., sight, hearing, smell, or touch.|
07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
|Hearsay
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Information of which the Agent does not have personal
knowledge is hearsay. Although probable cause may be based in wholeor in part on hearsay, Agents should carefully evaluate suchinformation to ensure that it is given proper weight. In evaluating
hearsay information, Agents should consider the CREDIBILITY OF THESOURCE as well as the RELIABILITY OF THE INFORMATION PROVIDED.|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
I1-4.2.1 Credibility of the Source
! Knowledge of the source In everyday experience,either consciously or subconsciously, we make judgments regarding the
credibility of individuals who provide information to us. Whether weknow the person, how well we know them, and what we know about them-these are common factors we rely upon in judging credibility.
i ! Corroboration of facts - Credibility of any source
can be bolstered if we already know, or can establish independently,
that a substantial portion of the information is true. /
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
I1-4.2.2 Reliability of the Information
The most credible of sources may provide information thatis unreliable. Thus, in assessing the reliability of the
information, it is important to ascertain the basis of it. In otherwords, how does the source know? How was the information acquired?If Agents know how the source obtained the information, it is possible
to assess its reliability. For example, if the source obtained itfirsthand, it is more reliable than if it was obtained through
hearsay. If the Agents do not know how the source obtained the
information, a high degree of detail in the information provided can
support an inference that the information is reliable. In the absenceof knowledge of the basis for the source's information, independent
corroboration can support a reasonable belief in the information:
reliability.|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
|l-4.3 Logical Inferences |
In addition to information acquired through firsthand
perceptions or hearsay, Agents may draw logical inferences from that
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information. For example, Agents may receive reliable information
that an individual is engaged in illegal distribution of cocaine.
Although the information makes no reference to other items of
evidentiary value, the Agents may logically infer that one who engagesin that kind of criminal activity will also possess related items such
as packaging materials, large amounts of cash, records that would
identify names of sources and customers, etc. Such inferences can be
included in the probable cause statement to support the issuance of asearch warrant for all of the relevant items named.|
**EffDte: 07/26/1999 HCRT#: 915 Div: n9 Cav: SecC1l:
1-5 ICOMHUNICATING was FACTSI
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
1-5.1 |General
If Agents apply for a warrant to arrest or to
search, they must communicate the underlying facts to support theissuance of the warrant probable cause! to a magistrate judge who has
the authority to issue the warrant. If Agents make warrantless
arrests or conduct warrantless searches requiring probable cause, the
obligation to communicate the probable cause underlying the action
will arise thereafter. For example, following a warrantless arrest,Rule 5 of the Federal Rules of Criminal Procedure FED.R.CRIM.P.!
requires that the arrestee be taken to the nearest available
magistrate judge without unnecessary delay, and that a Complaint be
filed. A Complaint is defined as "a written statement of the
essential facts constituting the offense charged." If Agents conduct
a warrantless search where probable cause is the legal prerequisite--
e.g., the Vehicle Exception--it is most likely that their assessment
of probable cause will be subsequently challenged by the defendant
during a suppression hearing. The important point is that whether
obtaining warrants, or justifying warrantless actions requiring
probable cause, Agents must be prepared to communicate the facts
supporting their determination that probable cause existed to support
the action taken.|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
1-5.2 {Constitutional Requirements for Issuance of Warrants
The Fourth Amendment explicitly mandates that "no Harrants
shall issue, but upon probable cause, supported by Oath or
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affirmation, and particularly describing the place to be searched, andthe persons or things to be seized." In addition, the U.S. Supreme
Court has held that the Fourth Amendment implicitly requires that awarrant be issued by "a neutral, detached magistrate."|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: sggclgg
1-5.2.1 |De1eted|
**arrnc¢= 07/26/1999 ucnr#= 915 01v; no Cav: 5.¢¢1,,
1-5.2.2 |n.1¢r@¢]
**EffDte: 07/26/1999 HCRT#: 915 Div; D9 Cav: SecC1a:
I1-5.3 Procedural Requirements for Issuance of Warrants
! Arrest Warrants - In addition to the constitutional
requirements for warrants, the Federal Rules of Criminal Procedure
FED.R.CRIH.P.! set forth certain rules governing issuance of arrest
warrants.
a! The Complaint Rule 3 defines a Complaint as "a
written statement of the essential facts constituting the offense
charged. It shall be made upon oath before a magistrate judge." The
Administrative Office of the United States Courts has provided Form
A.0. 91 "Criminal Complaint"! for assistance in preparing a
complaint.
b! Rule 4 a!, FED.R.CRIH.P., provides that is the
Complaint establishes probable cause to believe that an offense has
been committed and that the defendant committed it, a warrant for the
arrest of the defendant shall issue to any officer authorized to
execute it. The finding of probable cause may be based upon hearsay
evidence in whole or in part. FBI Agents are authorized by federal
statute, Title 18, USC, Section 3052, to execute arrest warrants.
! Search Warrants - In addition to the constitutional
rules governing the issuance of warrants, the FED.R.CRIH.P. set forth
certain requirements for issuance of search warrants.
a! Application and Affidavit for Search Warrant -
The Administrative Office of the United States Courts has provided
Form A.0. 106 "Application and Affidavit for Search Warrant"! to
facilitate application for search warrants.
b! Rule 41, FED.R.CRIM.P., provides that a warrant
shall issue only on an affidavit sworn before a federal or state
magistrate judge and establishing the grounds for issuing the
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sworn oral testimony comunicated by telephone.[
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav:
I1-5.4 The Probable Cause Statement
! General - Whether preparing an affidavit
warrant or a complaint for an arrest warrant, the purpose
To communicate the relevant information to the magistrate
understandable way. Based upon the information provided,
probable cause determination.
in the probable cause determination.
the Agent and the sources obtained the information.
should be believed.
presumed.
inferences regarding the source's credibility.
SENSITIVEwarrant. If circumstances make it reasonable to dispense with awritten affidavit, a federal magistrate judge may issue a warrant upon
SecCls:
for a search
is the same:
judge in an
themagistrate judge must make an independent determination that probable
cause exists to support the issuance of the warrant. In the same
manner that Agents assess the value and weight of information by
evaluating the credibility of the source and the reliability of the
information, a magistrate judge will assess the information and make a
! The "Four-Corners" Rule - The Agent's responsibilityis to ensure that all of the appropriate information is included in
the probable cause statement. Information known to the Agent but notincluded in the affidavit cannot be considered by the magistrate judge
! In addition to relating all of the relevant facts
necessary to support a finding of probable cause, the affidavit should
also attribute the facts to their sources and indicate the time when
! Credibility of the Source - Information should be
communicated to the magistrate judge which shows that the source
a! Named Source ~ when the source of the
information is named in the affidavit, the source's credibility is
b! Unnamed Source - When the source is not named,
Agents should, whenever possible, provide information to the
magistrate judge that is relevant to the source's credibility.
1. Good Citizen/Law Enforcement Officer - The
credibility of a good citizen or a law enforcement officer is
presumed. Thus, if a source is a good citizen in the community or a
law enforcement officer, that information should be set forth in theaffidavit so that the magistrate judge can draw the appropriate
2. Criminal Informant - The credibility of one
who is involved in criminal activity is not presumed; it must beI
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evaluating the credibility of the source.
source may unwittingly provide-unreliable
or if the manner in which the information
information:
the trustworthiness of the information as
by disclosing the subject's prior history
activity at issue, such as noting a prior
b! Degree of Details -
recognized that the greater the degree of
source, the greater is the inference that
! The inability to satisfy
sufficient to support a reasonable belief
the belief in both the credibility of the
of the information.
! One of the most criticalestablished. Consequently, it will be necessary to provide some basis
for establishing that credibility. Relevant factors can be prior
instances when the source provided reliable information track
record!, or corroboration through independent investigation of a
substantial portion of the information provided by the source.
3. Anonymous Tips - Information from an
anonymous source can also be considered by a magistrate judge in
determining the existence of probable cause. The degree of detail in
the source's information, or corroboration of the information through
independent investigation, will assist the magistrate judge in
! Reliability of the Information - The most credible
information. A magistrate
judge must be able to evaluate the reliability of the information.
Disclosing to the magistrate judge how information was obtained is
highly relevant. If a source obtained the information firsthand, that
is sufficient to establish its reliability. If that is not the case,
was acquired cannot be
disclosed without endangering a confidential source, one or both of
the following factors can help to establish the reliability of the
a! Independent Corroboration - Independent
corroboration of some of the facts provided by a source can bolster
a whole. Corroboration may
take the form of confirming most of the facts supplied by a source, or
of the kind of criminal
arrest or conviction record.
The U.S. Supreme Court has
details provided by a
the information is reliable.
either part of the two-
pronged standard described above-i.e., credibility of source or
reliability of information--does not foreclose a finding of probable
cause. The ultimate test is whether the totality of information is
that a particular person
committed a particular crime, or that particular items of evidence are
located at a particular place. For example, if an informant's
credibility cannot be established directly, the fact that the
informant has previously proved to be a credible source can be
considered by the magistrate judge in finding probable cause.
Likewise, if an informant's basis of knowledge is not disclosed, but
the information provided is highly detailed, a magistrate judge may
conclude that the informant has a reliable basis for the information.
Independent corroboration of the infornants information can bolster
source and the reliability
challenges for an Agent is
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providing sufficient information to a magistrate judge to establish
probable cause without disclosing the identity of a confidential
source. The following paragraphs illustrate how this may be
accomplished:
"On December 15th, 1998, a confidential informant furnished
information to me. This informant has given me information on six
prior occasions within the past year which has resulted in the
recovery of property stolen from the United States Government as
well as property stolen from an interstate shipment. The
information has resulted in the arrest of two individuals.
Further details as to the past information provided by this
informant would furnish clues as to his/her identity. The
identity of this informant should be kept confidential because
disclosure would endanger his/her life and impair his/her future
usefulness to law enforcement. The informant told me that the
following information is based upon his/her personal observations
and knowledge: Within the past week, the informant has observed
items marked Property of the United States in a warehouse at
1435 Old Triangle Road, Triangle, Virginia. During the time of
these observations, fifteen or twenty persons were present in the
warehouse and several others arrived and departed. A man called
Shorty, believed to be the owner of the warehouse, was also
present. Shorty is further described ... etc."|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
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**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
I1-6.1 Review by Field Office Chief Division Counsel CDC! I
Where possible and practicable, an Agent should review the
facts of probable cause with the Chief Division Counsel, Associate
Division Counsel ADC!, or FBI Legal Advisor before presenting the
matter to the United States Attorney USA! or Assistant United States
Attorney susn! . |
**EffDte: O7/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
I1-6.2 Bureau Policy - USA/AUSA Approval I
warrant must obtain prior authority from the USA or AUSA before filing
a Complaint or Affidavit for Search Warrant with the magistrate judge.
SENSITIVEIt is FBI policy that an Agent seeking an arrest or search l
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If the USA/AUSA recommends any additions, deletions, or other changes
in the probable cause statement, such changes should be made before
filing with the magistrate judge.|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cay: s¢¢c1;;
I1-6.3 Final Review and Filing
A copy of every Complaint and Affidavit for Search Warrant
filed by an Agent is to be obtained for filing as a serial in the case
file. Before such documents are placed in the case file, they are to
be reviewed and initialed by the CDC, ADC or FBI Legal Adviser. The
purpose of this review is to enable the field office to maintain
control over the quality of Complaints and Affidavits prepared by
Agents. Efforts to obtain warrants, whether or not successful, should
be reported to the CDC, and a record thereof placed in the case file.|
**EffDte: 07/Z6/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
1'7 PREPARATION GUIDELINES FOR PROBABLE CAUSE STATEMENT
The validity of a warrant may be jeopardized by careless
mistakes in the preparation of the supporting affidavit. The
following may help to avoid mistakes:
! USE SIMPLE, CONCISE LANGUAGE. The purpose of an
affidavit is to communicate information to a magistrate judge. Using
stilted, archaic language is detrimental to that purpose.
! AVOID POLICE JARGON. Words and phrases peculiar to
the law enforcement profession may not be clearly understood by a
magistrate judge.
! AVOID EXTRANEOUS INFORMATION. While it is important
to include all of the information relevant to probable cause, it is
equally important to avoid the clutter of irrelevant information. An
affidavit is a probable cause statement, it is not an investigative
report.
! USE SEPARATE, NUMBERED PARAGRAPHS. A separate,
numbered paragraph for each source of information is an effective
organizational technique.
! WHEN, WHO, FROM NHOM, HOW, AND WHAT. For each source
of information, the affidavit should indicate whenever possible WHEN
information was received, WHO received or acquired it, FROM WHOM if
hearsay! it was received, HOW the source acquired it, and WHAT the
information is. It is recognized that this formula will not fit all
circumstances. However, using it as a guide will minimize the risk
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that important information will be omitted. I
! AVOID CONCLUSORY STATEMENTS. Your responsibility 1; _
to communicate the facts. The magistrate judge: responsibility is to
reach the
it in not
"Based on
**E£fDte:
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**EffDte:appropriate conclusions baled on those facts. For example,
appropriate to include in an affidavit such statements as:
the foregoing, I have probable cause to believe...."|
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SECTION 2. AFFIDAVITS AND COMPLAINTS
**EffDte: 04/28/1978 MCRT#: O Div: D9 Cav: SecC1s:
2-1 [BACKGROUND
eliminate
**EffDtet
2-2
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**EffDte:
2-3.0This entire section was deleted. Provisions in former
section 2 relating to probable cause were relocated to section 1,
while provisions relating to the drafting of search warrants and
arrest warrants were moved to sections addressing search and seizure.
Furthermore, the text of those provisions was reworded in order to
redundant sections.|
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SECTION 3. ARREST
**EffDte: 04/28/1978 HCRT#: 0 Div: D9 Cav: SecCls:
3~1 IISSUANCE or ARREST HARRANTS
! Complaints: When a federal prosecution is initiated
by a complaint, Rule 4. FED.R.CRIM.P., provides that jurisdiction over
the defendant can be obtained by either a warrant or a summons. The
rule states that a warrant shall issue for the arrest of the defendant
if. based on either the complaint or an affidavit or affidavits filed
with the complaint, there is probable cause to believe that an offense
has been committed and that the defendant has committed it. The
issuance of a summons for the appearance of the defendant requires the
same showing. A complaint is defined in Rule 3, FED.R.CRIH.P., as "awritten statement of the essential facts constituting the offense
charged. It must be under oath and before a magistrate." Thus,
federal law requires that probable cause for an arrest warrant be
presented in documentary form under oath.
! Who Hay Issue an Arrest Warrant: Title 18, USC,
Section 3041, confers the power to issue arrest warrants for any
offense against the United States upon any justice or judge of the
United States, or any U.S. magistrate. In addition, any chancellor,
judge of a supreme court, chief or first judge of common pleas, mayor
of a city, justice of the peace or other magistrate, of any state
where the offender may be found can issue such warrants. Copies of
warrants issued under this authority are returned to the court of the
United States that has cognizance of the offense. Constitutionally,
the requirement is that the issuing authority be neutral and detached
and that he/she has the capability of deciding probable cause.
! Jurisdiction: Federal rules do not limit the
application for an arrest warrant to any specified district. Usually,
application for such a warrant will be made in the district where the
offense was committed but that is not mandatory. Thus an arrest
warrant may be issued by any of the designated magistrates in the
place where the offender is found. While federal law makes provisions
for a large class of magistrates to issue arrest warrants, the subject
matter for which such a warrant shall issue is limited to federal
offenses.
! Description of the Person to be Arrested: Rule 4 c!
!, FED.R.CRIH.P., states that an arrest warrant shall contain the
name of the defendant or, if his/her name is unknown, any name or
description by which he/she can be identified with reasonable
certainty. The rule does not require the determination of the
accused's true name. It is sufficient if the Agent develops facts
which lead to a reasonable belief that a particular individual is the
offender, and that may do no more than provide a distinguishing
physical description or tell the particular circumstances in which
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he/she will be found.| |
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
3*Z CRIMINAL LIABILITY-ESCAPE
An Agent who either voluntarily or negligently permits the
escape of a prisoner in Agent's custody by virtue of process issued
under the laws of the United States by any court, judge, or
magistrate, is guilty of a Federal criminal violation Title 18, USC,
Section 755!.
**EffDte: ll/10/1988 MCRT#: 0 Div: D9 Cav: SecC1s:
3'3 ARREST WITH WARRANT
**E£EDte: 11/10/1988 MCRT#: 0 Div: D9 Cav: SecCls:
3-3.1 Policy
Wherever possible, prosecution should be authorized by the
USA, and a warrant issued prior to an arrest. In addition, a search
warrant is to be obtained before entry to third party premises for the
purpose of arrest, in the absence of consent or exigent circumstances.
SACs may authorize Agents to execute arrest warrants. In
extraordinary circumstances, prior FBIHQ authorization should be
obtained. For example, where the arrest may have a significant impact
on an investigation in another field office, or where the arrest is
likely to cause wide publicity due to the identity or status of the
arrestee, FBIHQ should be notified and prior approval obtained before
arrest.
**Ef£Dte: ll/10/1988 HCRT#: 0 Div: D9 Cav: SecCls:
3-3.2 Prompt Execution
Hhile there is no time limit on the execution of arrest
warrants unlike search warrants!, as a general rule, the arrest
should be made without prolonged delay.
**EffDte: 11/10/1983 hCRT#: 0 Div: n9 Cav: s¢=c1s:
3-3.3 Joint Arrests See MIOG, Part 2, ll-2.l.2!.!
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FBI Agents are authorized to serve all arrest warrants
issued in cases over which the FBI has investigative jurisdiction.
|The|Specia1 Agent in Charge SAC! My authorize joint arrests with
state and local authorities, U.S. Marshals, or other federal law
enforcement agencies. Special concern should be given to the
utilization, or at least the alerting, of local authorities in
instances where it may logically be anticipated that resistance could
be forthcoming from the subject s! or members of the community.
Although the time of notification to local authorities concerning
arrests made within their jurisdiction by FBI Agents is left to the
discretion of the SACs, concern must be given to the sensitivity of
local law enforcement agencies to know what is transpiring in their
jurisdictions. The FBI must respect their responsibility to the
people of their communities.
**EffDte: 07/26/1999 hCRT#: 915 Div: D9 Cav: SecCls:
3-3.4 Possession and Display of Warrant See HIOG, Part II,
112.1.2!.!
An Agent need not have the warrant in possession at the
tine of arrest, but upon request,|Agent[shall show the warrant to the
defendant as soon as possible. If the Agent does not have the warrant
in possession at the time of arrest,[Agent[shall then inform the
defendant of the offense charged and of the fact that a warrant has
been issued. Where time will permit and the successful arrest of the
subject will in no way be jeopardized, the arresting Agent should have
the warrant of arrest in possession in order that the same may be
exhibited to the subject upon request.
**EffDte: 05/28/1980 HCRT#: 0 Div: D9 Cav: SecCls:
3-3.5 Service of Summons See HIOG, Part II, 11-2.1.3.!
Summonses should not be served by Agents without prior
authorization of FBIHQ.
**EffDte: O5/28/1980 HCRT#: O Div: D9 Cav: SecCls:
3-4 ARREST WITHOUT WARRANT
**EffDte: 05/28/1980 HCRT#: 0 Div: D9 Cav: SecCls:
3-4.1 Policy
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Where possible, SAC authority should be obtained before
making warrantless arrests. |Agents are authorized to make warrantless
arrests for any federal crime felony or misdemeanor! committed in
their presence.| Authority for warrantless
crimes not committed in the presence of Agents, if they have probable
cause to believe the person to be arrested haslcommitted a federal
fe1ony.| Use of the warrantless arrest authority should be limited to
those instances in which sound judgment indicates the obtaining of a
warrant would unduly burden the investigation or substantiallyincrease the potential for danger or escape. | See LHBSA, 3-4.3, for I
nonfederal arrest authority.!|
**EffDte: 01/30/1997 HCRT#: 583 Div: D9
3-4.2 Notification to U.S. Attorney
Where a warrantless arrest has
be contacted immediately for authorizationfe1ony|arrests|extends to i
Cav: SecCls:
been made, the USA should
of prosecution.
**EffDte: 05/28/1980 HCRT#: 0 Div: D9 Cav: SecCls:
3-4.3 Nonfederal Crimes See|LH®SA, 3-4.1, and Section 9.!
! There is no federal statutory authority for FBI
Agents to intervene in nonfederal state! crimes. However, based
upon guidance provided by the Department of Justice, it is the policy
of the FBI to permit certain types of nonfederal arrests when exigent
circumstances exist.
! As a general rule, arrests for state crimes should be
made by an Agent where a serious offense felony or violent
misdemeanor! has been committed in his or her presence and the
immediate intervention and assistance of that Agent are necessary to
prevent escape, serious bodily injury, or destruction of property.
! Agents are also encouraged to arrest a person who is
the subject of an FBI inquiry that has been initiated in accordance
with the Attorney General guidelines when a state or local arrest
warrant for that person is known to be outstanding and the person is
encountered during an investigation and would otherwise escape.
Similarly, an FBI Agent working in concert with state or local law
enforcement officers who request assistance in the apprehension of a
nonfederal fugitive encountered during the
investigation should provide the requested
under the circumstances.
! In some states, legislative
intervention by a federal Agent in certain
peace officer rather than as a private citizen. Deputization as acourse of a federal
assistance when reasonable
j
authority exists for
types of state crimes as a
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state peace officer is another means which allows a federal officer
to make arrests for state offenses with the authority and immunities
of a law enforcement officer of the state or one of its subdivisions.
Of greater significance in terms of potential personal liability,
however, is the issue of whether intervention by an Agent in a
particular nonfederal crime falls within the scope of employment.
Agents who intervene in serious nonfederal crimes committed in their
presence or who arrest a state fugitive under the circumstances
previously described will normally be considered to be within the
scope of employment. While a determination as to legal
representation must depend on the facts and circumstances of each
case, the Department of Justice, as a general rule, will provide
legal representation to Agents who act in accordance with this
policy.
! It is important to note that the Department of
Justice has indicated that efforts to enforce minor infractions of
the law-such as shoplifting or traffic violations--are not generally
considered within the scope of employment. Accordingly, civil
actions against federal personnel concerning acts which fall outside
the scope of employment will not be removed to federal courts, and
defendant employees in such cases will not be eligible for legal
representation provided for by the Department of Justice. An Agent's
status with respect to civil liability in such cases will depend on a
particular state's law, which may require an employee to defend
himself/herself as an ordinary citizen.|
**E£fDte: 01/30/1997 MCRT#: 583 Div: D9 Cav: SecCls:
3-4.h Adherence to FBI Policy
Where instructions are received from the USA or USA's
assistant for arrest and detention of a subject in any manner contrary
to FBI rules and regulations, such instructions are not to be complied
with in absence of FBIHQ authority. On receipt of such instructions,
FBIHQ should be promptly advised.
**Ef£Dte: 06/19/1992 HCRT#: 0 Div: D9 Cav: SecCls:
3-5 PROMPT APPEARANCE nrronz MAGISTRATE See 7-16 and
MIOG,|Part 1, 88-5.2;|Part 11, 2-7.1, 2-11.4.1 and
111.4.!
[Except as provided below, whetherlthe arrest is made with
or without a warrant, the person arrested must be taken before the
nearest available federal magistrate without unnecessary delay. If a
federal magistrate is not available, the person arrested may be
brought before a state or local judicial officer authorized by Title
18, USC, Section 3041. |That procedure need not be followed if the
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person is arrested under a warrant issued upon a complaint that
charges only a violation of Title 18, USC, Section 1073 UFAP!, the
arrested person is transferred without unnecessary delay to the
custody of appropriate state or local authorities in the district of
arrest, and the government attorney in the originating district moves
promptly for the dismissal of the UFAP complaint. The Department of
Justice Criminal Division has advised FBIHQ that it is not necessary
to wait until the UFAP warrant has actually been dismissed before
releasing the subject to state or local authorities, but it is
important that efficient procedures be implemented and followed to
make sure that UFAP warrants are promptly dismissed after notification
of an arrest is given.!] If the arrest was without warrant, a
complaint is to be filed, setting forth the facts of probable cause
when the arrestee is brought before the magistrate. A personal,
telephone, or electronic presentation of the complaint setting forth
probable cause for the magistrate must occur within 48 hours following
a warrantless arrest if the arrestee is detained and an initial
appearance cannot be held within that 48-hour period. Proceedings
before the magistrate will be carried out in accordance with Rule 5,
Federal Rules of Criminal Procedure.
**EffDte: 05/10/1996 HCRT#: 538 Div: D9 Cav: SecCls:
3-5.1 Effect of Unnecessary Delay
Incriminating statements obtained during a period of
unnecessary delay after arrest and prior to the initial appearance
before a magistrate are subject to exclusion.
**EffDte: 06/19/1992 MCRT#: 0 Div: D9 Cav: SecCls:
3-5.2 Definition of Unnecessary Delay
Title 18, USC, Section 3501, provides that a confession,
otherwise voluntary, obtained within six hours following arrest or
detention, is admissible in evidence. Delay of more than six hours
may invalidate an incriminating statement obtained after the six hours
have elapsed. However, the statute provides that the six-hour
limitation shall not apply where delay in bringing the arrestee before
a magistrate is found by the trial judge to be reasonable considering
the means of transportation and the distance to be traveled to the
nearest magistrate.
**EffDte: 06/19/1992 HCRT#: 0 Div: D9 Cav: SecCls:
3~5.3 Booking Procedure
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Following arrest, the person in custody should be broughtto the nearest FBI office for fingerprinting, photographing, and
interview, where appropriate. Police departments or sheriffs' offices
may be used for this purpose where FBI facilities are not available.
This "booking" process generally should not exceed six hours, measured
from the time of arrest to the time of arrival before the magistrate.
**EffDte: 06/19/1992 HCRT#: 0 Div: D9 Cav: SecCls:
3-5.4 Necessary Delay
If the delay in bringing an arrested person before the
magistrate is greater than six hours, the government has the burden of
proving the delay was not unreasonable, if a confession obtained after
six hours is to be admissible. Ifactors which could contribute to a
reasonable delay are the means of transportation and the distance tobe traveled to the nearest available magistrate.|
**EffDte: 01/30/1997 MCRT#: 583 Div: D9 Cav: SecCls:
3-6 uss or FORCE| See HIOG, Part 2, 11-1.1.!|
**EffDte: 12/28/2001 MCRT#: 1164 Div: D9 Cav: SecCls:
3-6.1 Identification
A person to be arrested should be aware of the intention
of the arresting Agent to deprive him/her of his/her liberty by legal
authority. Therefore, it is the responsibility of the arresting Agent
to identify himself/herself, before effecting the arrest, in a clear,
audible voice, as a Special Agent of the FBI.
**EffDte: 06/19/1992 HCRT#: 0 Div: n9 Cav: SecCls:
3-6.2 Physical Force
Agents are permitted to use that amount of physical force
reasonable and necessary to impose custody and overcome all
resistance, and to ensure the safety of the arresting Agents, the
arrestee, and others in the vicinity of the arrest.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
3-6.3 Restraining Devices
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Temporary restraining devices, such as handcuffs,
shackles, and belts, may be used to|secure|a person arrested. Use of I
such devices is lawful and proper. Agents are expected to employ
sound judgment in the use of these devices, and to resolve any doubt
in favor of their use. See_MIOG, Part II, Section 111.5.!
**EffDte: 01/30/1997 HCRT#: 583 Div: D9 Cav: SecCls:
3-6.5 FBI Deadly Force Policy Instructional Outline
See LHBSA,|Part 1,14-2.5 and MIOG, Part 2, 11-5,
122.1,|12-10.4.1 !,|and MAOP, Part 1, 1-4.!
! INTRODUCTION: This outline provides guidance to FBI
Agents in the use of deadly force. The following general principles
are to govern application of the FBI: deadly force policy:
a! The policy is not to be construed to require
Agents to assume unreasonable risks. In assessing the need to use
deadly force, the paramount consideration should always be the safety
of the Agents and the public.
b! The reasonableness of an Agent's decision to use
deadly force under this policy must be viewed from the perspective of
the Agent on the scene--who may often be forced to make splitsecond
decisions in circumstances that are tense, uncertain, and rapidly
evolving--and without the advantage of 20/20 hindsight.
! POLICY TEXT:
a! Defense of Life - Agents may use deadly force
only when necessary, that is, when the Agents have probable cause to
believe that the subject of such force poses an imminent danger of
death or serious physical injury to the Agents or other persons.
b! Fleeing Subject - Deadly force may be used to
prevent the escape of a fleeing subject if there is probable cause to
believe:
1. the subject has comitted a felony involving
the infliction or threatened infliction of serious physical injury or
death, and
2. the subject's escape would pose an iminent
danger of death or serious physical injury to the Agents or other
persons.
c! Verbal Warnings - If feasible, and if to do so
would not increase the danger to the Agent or others, a verbal
warning to submit to the authority of the Agent shall be given prior
to the use of deadly force.
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d! Warning Shots - No warning shots are to be fired
by Agents.
9! Vehicles - Weapons may not be fired solely to
disable moving vehicles. Weapons may be fired at the driver or other
occupant of a moving motor vehicle only when the Agents have probable
cause to believe that the subject poses an imminent danger of death
or serious physical injury to the Agents or others, and the use of
deadly force does not create a danger to the public that outweighs
the likely benefits of its use.
! DEFINITIONS
a! Deadly Force: Force that is likely to cause
death or serious physical injury.
b! Necessity: In evaluating the necessity to use
deadly force, two factors are relevant: 1! The presence of an
imminent danger to the Agents or others; and 2! The absence of safe
alternatives to the use of deadly force. Deadly force is never
permissible under this policy when the sole purpose is to prevent the
escape of a suspect.
1. Imminent Danger: "Imminent" does not mean
"immediate" or "instantaneous," but that an action is pending.
Thus, a subject may pose an imminent danger even if he/she is not at
that very moment pointing a weapon at the Agent. For example,
iminent danger may exist if Agents have probable cause to believe
any of the following:
a. The subject possesses a weapon, or is
attempting to gain access to a weapon, under circumstances indicating
an intention to use it against the Agents or others; or,
b. The subject is armed and running to gain
the tactical advantage of cover; or,
c. A subject with the capability of
inflicting death or serious physical injury-or otherwise
incapacitating Agents-without a deadly weapon, is demonstrating an
intention to do so; or
d. The subject is attempting to escape from
the vicinity of a violent confrontation in which he/she inflicted or
attempted the infliction of death or serious physical injury.
2. Absence of a safe alternative: Agents are
not required to use or consider alternatives that increase danger to
themselves or to others. If a safe alternative to the use of deadly
force is likely to achieve the purpose of averting an imminent
danger, deadly force is not necessary. Among the factors affecting
the ability of Agents to SAFELY seize a suspect, the following are
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relevant:
with no safe option.
additional risks.
no longer poses an imminent danger.
b! When deadly force is
policy, attempts to shoot to cause minor
can prove dangerous to Agents and others
achieve the intended purpose of bringing
timely halt.
**E££Dte: 05/06/2002 HCRT#: 1192 Div: D9
11-2.1.5.!!
and announce" their identity, authority,a. Response to commands - Verbal warnings
prior to using deadly force are required when feasible--i.e., when to
do so would not significantly increase the danger to Agents or
others. While compliance with Agents commands may make the use of
deadly force unnecessary, ignoring such commands may present Agents
b. Availability of cover Availability ofcover provides a tactical advantage. An armed suspect attempting togain a position of cover may necessitate the use of deadly force;
conversely, an Agent in a position of cover may gain additional timeto assess the need to use deadly force without incurring significant
c. Time constraints - The inherent
disadvantages posed by the issue of action/reaction, coupled with the
lack of a reliable means of causing an instantaneous halt to a
threatening action, impose significant constraints on the time-framein which Agents must assess the nature and imminence of a threat.
! APPLICATION or DEADLY FORCE
a! When the decision is made to use deadly force,
Agents may continue its application until the subject surrenders or
permissible under this
ingury are unrealistic and
because they are unlikely to
an imminent danger to a
c! Even when deadly force is permissible, Agents
should assess whether its use creates a danger to third parties that
outweighs the likely benefits of its use.
Cav: SecC1s:
3-1 IMANNER or rnrnv See s-2.1 and nroc, Part 2,
! |Tit1e 18, USC, Section 3109 requires Agents to "knock
purpose and demand to enterbefore entry is made to execute a search warrant. This principle
applies prior to making forcible entry to arrest as well. Agents
making forcible entry should adhere to the policy and procedures set
forth in section 5-2.2.2. entitled "Manner of Entry."|
! |Suspects Premises - in order to enter lawfully a
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that the suspect is in the premises.
the suspect is not named on the lease
premises may still be regarded as the
suspect occupies the premises jointly
hotel room shared by the suspect with
not named on the hotel register is to
premises.|
! |Third
third party's premises
have consent to enter,
warrantless entry mustParty Premises
the principal residence of the person
an arrest warrant, search warrant, or
424.2.l and Part 2, 21-13.4.!
obtain a warrant.[
**EffDte: O7/26/1999 HCRT#: 915 Div:
Arrest!.
|11-1.2 and|l1-2.3.2-!suspect's premises to arrest, Agents must obtain consent to enter, an *emergency "hot pursuit"! justifying a warrantless entry must exist,or the Agents must obtain an arrest warrant and have probable cause
the suspect's premises, it should be noted that an apartment, or a
hotel, motel, or boardinghouse room becomes the principal residence of
the person renting or leasing such premises. Thus, entry to arrest
the suspect would constitute entry into the suspect's premises if itis the hotel, motel or other room he/she is renting. Similarly, if
in order to arrest a defendant, Agents must
or an emergency "hot pursuit"! justifying a
exist, or the Agents must obtain a search
warrant particularly describing the person to be arrested and thepremises to be entered. For the purpose of such an entry, third party
premises should be construed to be any private premises which are not
search warrant would be necessary in circumstances where the person to
be arrested is an overnight guest, casual visitor, or temporary caller
at the premises of the third party. The entry to arrest, whether with
based on facts amounting to probable cause to believe the suspect to
be arrested is within the described premises.| See HIOG, Part 1,
b! |Exigent Circumstances examples of exigent
circumstances which might justify entry to premises to make a
warrantless arrest or an entry into third party premises without a *
search warrant are a reasonable belief that the subject will flee
before a warrant is obtained, a substantial likelihood that the 92
subject will dispose of evidence before a warrant is obtained, and an
increased danger to Agents or others as a result of the delay toFor establishing whether it is
92
or rental agreement, the
suspect's premises if the
with another. For example, a
another but where the suspect is
be treated as the suspect's
- in order to enter lawfully a
to be arrested. For example, a
exigent circumstances, must be
D9 Cav: SecC1s:
3a smncn INCIDENTAL T0 ARREST
See Section]5-6|of this handbook Search Incidental to I
**E£fDte: 07/26/1999 hCRT#: 915 Div: D9 Cav: SecC1s:
3"9 MEDICAL ATTENTION FOR ARRESTEES See HIOG, Part 2, l
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When any person in Bureau custody complains of sickness orill health, or where such a condition is reasonably apparent to Agents
present, arrangements should be made to afford such persons medical
attention without delay.
**EffDte: 12/28/2001 HCRT#: 1164 Div: D9 Cav: Sgcclgg
3-10 FOREIGN nnnonnts See 21106, Part II, 112.3.3.!
In every case in which a foreign national is arrested by
the FBI, Agents are to inform the foreign national that his/her consul
will be advised of his/her arrest unless he/she does not wish such
notification to be given. If the foreign national does not wish to
have his/her consul notified, the Agents are to also inform him/her if
there is a treaty in force between the United States and his/her
country which requires such notification, consul must be notified
regardless of his/her wishes, and that any necessary notification to
his/her consul will be made by the USA. In all arrests by the FBI of
foreign nationals including those where the foreign national has
stated that he/she does not wish his/her consul to be notified!, the
FBI field office shall inform the nearest USA of the arrest and of the
arrested person: wishes regarding consular notification.
**EffDte: 03/31/1983 HCRT#: O Div: D9 Cav: SecC1s:
3-11 ARRESTS IN FOREIGN COUNTRIES See HIOG, Part II,
ll-2.3.3, 23-4.4, and 23-8.2.!
Agents have no jurisdiction in foreign countries, hence,
cannot exercise the power of arrest, search, or seizure in such
places. Agents are not to be present at the scene of arrests by
foreign authorities, participate in or be present during searches
incidental to such arrest, accompany foreign officials transporting
prisoners, or participate in interviews of prisoners except at their
places of incarceration and in the presence of foreign authorities.
Agents are not to participate in any unauthorized or unlawful actions
even though invited to do so by a cooperating foreign officer.
**EffDte: 03/31/1983 HCRT#: 0 Div: D9 Cav: SecCls:
3-12 DIPLOMATIC IHUNITY See]5-11.!]
Diplomatic representatives of foreign governments in the
United States are exempt fro: arrest by all officers, federal or
state. Agents may not enter the office or dwelling of these
representatives for the purpose of making an arrest, search, or
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seizure.
! Territorial Immunity - Territorial immunity appliesto all embassies, legations, and consulates, and consequently, noAgent of the Bureau should attempt to enter any embassy, legation, orconsulate for the purpose of making any arrest, search, or seizure.This territorial immunity extends to both the offices and residencesof ambassadors and ministers, but only to the office of a consul and
not to officia1's residence.
! Personal Immunity Personal immunity applies toambassadors and ministers, members of their staffs and domestic
servants, and the immediate family members of diplomatic officers. Itsimilarly applies to the immediate family members of theadministrative and technical staff of a diplomatic mission.Consequently, no Agent should attempt to cause the arrest or detentionof any person included in these classifications. The personalimmunity applies to the staffs, domestic servants and immediate familymembers, irrespective of their citizenship. It will be noted thatpersonal immunity is not granted ordinarily to consuls from arrest onmisdemeanor charges. In the event the arrest of a consul iscontemplated, FBIHQ should be immediately notified by telephone or[electronic communicationlbefore any action is taken in order that anappropriate check may be made with the State Department to determinewhether the consul involved has any special imunity.
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
3-13 NEWS msnu. unnszns See HAOP, Part II, 5-7.1 and mos,
Part 11, 1-3.!
Prior authority of the Attorney General is required beforean Agent may seek an arrest warrant for a member of the news media whois suspected of an offense committed in the course of, or arising outof, the coverage or investigation of a news story, or while engaged inthe performance of official duties as a member of the news media. In
emergency circumstances, a news media representative may be arrestedwithout prior authority but subsequent justification must be furnishedto the Attorney General and the Department of Justice, Director ofPublic Information. Requests for authority of the Attorney General toseek an arrest warrant for a news media representative are to be
handled by the USA.
**EffDte: 05/28/1980 HCRT#: 0 Div: D9 Cav: SecC1s:
3-14 ARMED FORCES PERSONNEL
The Uniform Code of Military Justice authorizes anycommanding officer exercising general court-martial jurisdiction to
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surrender military personnel under|officers|command to civil ]
authority when charged with civil offenses. The request for surrender
must be accompanied by:
! A copy of the indictment, presentment, information,
or warrant;
! Sufficient information to identify the person sought
as the person who allegedly committed the offense;
! A statement of the maximum sentence which may be
imposed upon conviction. Receipts for persons surrendered to civil
prosecution are not to be signed by FBI personnel. Such forms are to
be executed by the U.S. Attorney.
**Ef£Dte: 05/28/1980 HCRT#: 0 Div: D9 Cav: SecC1s:
3-15 SERVICE OF SUBPOENAS
[To seek judicial remedies in the event that a person fails
to comply with a subpoena, Agents should ensure that the subpoena is
properly served by delivering a copy of the subpoena to the person
named in the subpoena.|
**Ef£Dte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
316 mu-zsr or JUVENILES See moo, Part 2,|4-1.1.!| I
**EffDte: 10/09/2001 HCRT#: 1159 Div: D9 Cav: SecC1s:
3-16.1 Definition See HIOG, Part II, Section 4-2.1.!
A juvenile is a person who has not attained his/her 18th
birthday at the time of arrest. |An act of juvenile delinquency is
the violation of Title 18, USC, Section 922 x! or a federal law which
would have been a crime, if committed by an adult, by a person who
has not attained his/her 18th birthday.[ For|the|purpose of juvenile
delinquency proceedings and disposition following an adjudication of
delinquency, a juvenile is a person who has not attained his/her 21st
birthday.
**EffDte: 10/15/1997 HCRT#: 719 Div: D9 Cav: SecCls:
3-16.2 Postarrest Procedures
The standard prearrest procedures applicable to adults
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discussion with United States
the following procedures.
language comprehensible to the
standard Form FD395 meet this
Part 2, Section 42.2.2.!
determination can be made only
recording the following facts:
a! That the
b! That the
c! That the
notified; and
d! That the
! Interrogation
who advised him/her of his/herAttorney, filing of complaint, issuance
of warrant! also govern arrests of juveniles. After arrest, however,
theIFederalIJuveni1e De1inquency|Act[requires strict compliance with
! Advice of Rights - The arresting Agent should
immediately advise the arrested juvenile of his/her "legal rights" in
juvenile. The rights found on the
requirement. However, inasmuch as no
interrogation will be conducted See Section 3-l6.2!!, it is not
necessary to obtain a waiver from the juvenile at this time. See
HIOG, Part 2, Section 4-2.2.1.!
! Notification to U.S. Attorney and Juvenile's Parents
The arresting Agent must immediately notify the USA and the
juveni1e's parents, guardian, or custodian, of such custody. The
parents, guardian, or custodian must also be notified of the
juvenile's rights and the nature of the alleged offense. See HIOG,
! Initial Appearance Before Magistrate - Agents must
take the arrested juvenile before a magistrate forthwith. The
magistrate must release the juvenile to his/her parents or guardian
or other responsible party! unless he/she determines that detention
is necessary to secure the juveni1e's timely appearance before the
court, or to ensure the juvenile's safety or that of others. This
after a hearing at which the juvenile
is represented by counsel. See MIOG, Part 2, Section 4-2.2¢6-!
! Record of Notification and Appearance ~ Since proof
of timely notification to parents and prompt appearance before the
magistrate is essential, Agents are required to prepare FD-302 s!
juvenile was advised of his/her rights;
USA was notified;
parents, Suardian, or custodian, was
juvenile was taken before a magistrate.
See HIOG, Part 2, Sections 4-2.2.2 and 4-2.2.6.!
and Interviews - A juvenile is not to
be interrogated for a confession or admission of his/her own guilt, or
even an exculpatory statement between the time of his/her arrest for
a federal offense and his/her initial appearance before the magistrate
rights. Information volunteered by
the arrested juvenile concerning his/her own guilt should be recorded
in the Agent's notes for use in subsequent proceedings, and clarifying
questions may be asked as necessary to make certain what the juvenile
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intends to say. The volunteered statement may be reduced to writing
if such action does not involve any delay in the juvenile's appearance
before the magistrate. The juvenile may, however, be questioned
concerning the guilt of someone else if such questioning does not
cause any delay in bringing him/her before the magistrate. These
requirements apply only from and after an arrest of juvenile, as
defined by federal law for a federal offense. They do not apply when
the juvenile is still a suspect for a federal offense under arrest by
state or local officers on a state or local charge. See !.! See
MIOG, Part 2, Section 4*2.2.5.!
! Fingerprinting and Photographing - Agents are not to
fingerprint or photograph a juvenile unless he/she is to be prosecuted
as an|adult.| Because usually it will not be known at the time of
arrest whether the arrestee will be prosecuted as an adult or handled
as a juvenile offender, Agents are not to fingerprint or photograph a
juvenile without consent of the judge. The law requires, however,
that following the adjudication of delinquency by the court where the
juvenile has been found guilty of an offense which, if committed by an
adult, would be a felony that is a crime of violence or a violation of
Title 21 USC, Section 841 manufacturing, distributing, dispensing of
a controlled substance or possession with the intent to do same!,
Section 955 possession of controlled substances on board vessels
arriving in or departing the United States! or Section 959
manufacture or distribution of controlled substances for purpose of
unlawful importation!, fingerprinting and photographing of the
individual shall take place. Following such a finding of delinquency,
Agents should coordinate the fingerprinting and photographing with the
U.S. Marshals Service. See 6-4.8 and HIOG, Part 2, Sections 4-2.2.3
and 14-8.1.4.!
! Press Releases - Agents are prohibited from making
public either the name or picture of the arrested juvenile. A press
release concerning the arrest of a juvenile is permissible if
carefully worded to contain no identifying information. See HIOG,
Part 2, Section 4-2.2.0, and HAOP, Part 2, Section 5-2.1 !.!
**Ef£Dte: 05/O1/2000 HCRT#: 994 Div: D9 Cav: SecCls:
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SECTION 4. INVESTIGATIVE DETENTION
**EffDte: 04/28/1978 MCRT#: 0 Div: n9 Cav: se¢c1i=
4*1 IN GENERAL
| l!| Investigative detentions stops! and protective [searches frisks! represent two separate and distinct proceduresavailable to Agents when investigating suspicious circumstances e.g.,possible bank robbery suspect! or detaining for identificationpurposes e.g., fugitive apprehension!. Each procedure must have itsown independent justification based on facts known to the Agents. Theinvestigative detention is a seizure and the protective frisk is asearch. Thus, each must meet the constitutional standard ofreasonableness set forth in the Fourth Amendment. These procedurescannot be used on mere suspicion or possible hunch but must bejustified by articulable facts supporting a reasonable suspicion thata person is involved in criminal activity and may be armed and pose athreat to the Agent or other individuals.
[! A seizure takes place only when an Agent, by meansof physical force or show of authority, restrains a citizen'sliberty. This rule is based on objective characteristics as towhether a reasonable person would believe someone talking to anAgent is free to walk away. Circumstances to consider includethe threatening presence of several Agents, the display of a
weapon, some physical touching, or the use of language or toneof voice suggesting a command rather than a voluntary request.Questions related to one's identity or a request foridentification do not, by themselves, constitute a seizure.This activity is an Agent-citizen contact, implicitly
consensual, even when the citizen is not told he or she is freeto leave. Identification interviews do not require reasonablesuspicion and can be a useful means to identify people presentat a location where Agents are executing a warrant. Theseinterviews should be momentary and cease as soon as reasonableidentification is ascertained.|
**EffDte: 05/01/1985 HCRT#: 0 Div: D9 Cav: SecCls:
4-Z DETENTION
**EffDte: 05/01/1985 HCRT#: 0 Div: D9 Cav: SecC1s:
k2.l Justification
The legality of a full custody arrest depends upon whetherthe si-resting Agent has facts sufficient to constitute probable cause;
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that is, facts of such quality and quantity to justify a reasonablebelief that the arrested person has committed a crime probability
that a crime has been committed!. Where the Agent has a lesser
quantity of facts which supports only a reasonable suspicion that a
crime may have been committed and a particular person may have beeninvolved possibility that a crime has been committed!, Agent may
still take action. Agent is justified in temporarily detaining the
suspect and making reasonable inquiry to determine if in fact a crime
has been committed. A particularized reasonable suspicion of criminal
activity also justifies the investigative stop of a motor vehicle for
the purpose of questioning its occupants. Agent's inquiries should beconducted in such a manner as to uncover additional facts regarding
the suspected criminal activity. Such additional facts may be
sufficient to meet the test of probable cause and justify an immediate
arrest.
**EffDte: 05/01/1985 HCRT#: 0 Div: D9 Cav: SeeCls:
4-2.2 Release of Suspect
The Agent may detain the suspect for a reasonable time and
must release the suspect if additional facts are not developed
supporting probable cause to arrest. The investigative detention
concept includes not only suspicious situations involving violent
crimes but also investigation of possessory and "white~collar" crimes.
**EffDte: 05/01/1985 MCRT#: 0 Div: D9 Cav: SecC1s:
4-2.3 Duration of Detention
[An Agent may detain s suspect for a reasonable period of
time or until the suspicions of the Agent are dispelled, whichever
comes first. What constitutes a reasonable period of time is a
flexible concept requiring assessment of a variety of factors, such as
the suspect's cooperation, the nature of the criminal activity being
investigated, and whether the Agent pursued a diligent course of
investigation thus avoiding unnecessary delay. For example, whether
the suspect is answering logical questions such as who he/she is and
what he/she is doing may be considered when determining whether a
detention should be extended. An Agent should diligently pursue
logical investigation and avoid unnecessarily extending the length of
time of the detention. For example, bringing a witness to the site of
the detention to identify the detainee in order to quickly clarify the
situation is permissible. Finally, it is recognized that some types
of criminal activity cannot be sufficiently investigated in the amount
of time other types of illegal activity may be investigated.|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
4-2.4 Site of Detention See 5-2.2.18 !.!
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Although an investigative detention represents a
substantial denial of one's freedom of movement, it should not
approach the same degree of full custody exercised when an individual
is placed under arrest. One of the principal factors considered in
deciding whether an arrest rather than a stop has in fact occurred is
the detention site. Most detentions occur on the street and involve
the stopping of a pedestrian or a motorist. Such detentions are
constitutionally permissible provided the degree of force and lengthof detention are reasonable under the circumstances. Likewise,
detention in private places when the Agent is lawfully present will
create no problem provided the Fourth Amendment reasonableness
standard is met. Problems arise when the initial detention site is
changed without justification. It should be remembered that any
exercise of detention authority should be accomplished with a minimum
of intrusion. Thus, moving a detained person should be avoided unless
there is good reason for doing so. The creation of a traffic hazard
or potential for hostile crowd reaction are justifiable reasons for
taking the person detained to another locale. Moving a suspect a
short distance to afford better lighting, or to allow the Agent to use
his/her car radio are also permissible; however, transporting a
suspect against his/her will to a field office and detaining him/her
there is a more serious intrusion. The inherent coercion present in
transporting and detaining a suspect in such an environment makes this
practice tantamount to arrest. Such a procedure can be used only when
it can be clearly shown that the suspect voluntarily accompanied the
Agents or that probable cause to arrest existed. As a general rule,
Agents have the authority to detain anyone present at a location, be
it a private residence or business establishment open to the public.
The primary purpose for this detention is to ensure the Agents safety
during the execution of the warrant. A second reason is to ensure the
presence of the occupants to whom possession of evidence or contraband
found during the search may be attributed.
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
4-2.5 Use of Force See 3-6.4 and H106, Part 2, 12-2.1,
|12-10.4.1 !,|and HAOF, Part 1, 1-4 !.!
! In order to effect a stop and enforce a period of
brief detention, an Agent may employ that degree of reasonable force
found necessary under the circumstances, short of deadly force. Use
of deadly force is not permitted to enforce a temporary detention.
However, this does not mean an Agent cannot defend himself/herself
when, in the course of attempting to make a stop, the Agent or another
person is placed in imminent danger of death or serious bodily harm,
and deadly force is thus consistent with the FBI's deadly force
policy.
! Reasonable force during the temporary detention may
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include, for example, the displaying of a weapon by the Agent under
circumstances justifying a reasonable suspicion on the Agent: part
that his/her life may be in danger. Thus, an Agent would be justified
in drawing his/her weapon when detaining a bank robbery suspect when
the Agent has a reasonable suspicion that the suspect is currently
armed.
! Handcuffs should not be used as a normal procedure in
maintaining a temporary detention; however, such restraints are
reasonable under special circumstances and will not automatically
convert the detention into an arrest. For example, attempts by a
suspect to turn and flee or a suspects refusal to comply with
commands to keep his/her hands in view of the Agent might Justify the
use of handcuffs during the detention period.
**EffDte: 05/06/2002 HCRT#: 1192 Div: D9 Cav: SecCls:
4~2.6 Interrogation and Advice of Rights
As a general rule, a stop and detention is not such a
significant deprivation of freedom as to constitute custody, as that
term is commonly understood. Persons temporarily detained for brief
questioning by Agents who lack probable cause to make an arrest need
not be warned of their rights against compulsory self-incrimination
and to counsel until such time as the point of arrest has been reached
or the questioning has ceased to be brief and casual and becomes
sustained and coercive.
**EffDte: 05/28/1980 MCRT#: 0 Div: D9 Cav: SecCls:
a2.7 |Deleted]
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
4-3 ILIHITED ssnncu FOR WEAPONS
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
4-3.1 |Authority to Conduct a Limited Search for Neaponsl
! IA limited search is permitted for weapons only,
provided the following factors are present:
a! there has been a lawful investigative stop;
b! there is reasonable suspicion that the person
detained may be armed;
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c! the Agent identifies himself/herself and ifthe situation permits, makes reasonable inquiries; and
d! the Agent's suspicions have not been dispe11ed.f
! |In justifying the decision to conduct a limitedsearch for weapons, Agents may consider such factors as:
92
a! the type of crime involved; 92
b! the reputation of the person detained;
92 c! the time and place of the stop;
d! a sudden movement, and
e! a bulge in the suspect's c1othing.|
**EffDte: 07/26/1999 scary}: 915 Div: D9 Cav: seccii:
4-3.2 |Permissible Scope of a Limited Search for Weapons
! General Rule: In conducting a limited search forweapons, Agents actions must not only be justified at their inceptionbut also be reasonable in scope. Generally, a limited search forweapons should begin with a pat-down of the detainee's outer clothing.Further intrusions into areas, such as an unlocked briefcase or apurse, would be reasonable if the Agent was unable to determine from -the outside whether there was a weapon within. An exception would bewhen the Agents have specific information firsthand information, areliable tip, etc.! regarding the location of a weapon. In thatinstance, they may retrieve the weapon directly without firstsearching the suspect's outer clothing. In other words, the degree ofintrusion that is permitted is that which is necessary to protect the
Agent against possible harm.
! Vehicles: When detaining the driver or occupants of 92a vehicle, if the Agent reasonably suspects that the detainee may bearmed, the Agent may conduct a limited search of the interiorpassenger compartment of the vehicle, including unlocked containers,in order to locate weapons.
! Packages and Containers: A limited search ofunlocked packages and containers in the possession of the suspect isjustified if the Agent has reasonable suspicion the suspect is armed,provided the container's design and size permits easy access to spossible weapon. Generally, a limited search for weapons in acontainer or package should begin with a pat-down of the outersurface. To go beyond merely squeezing or feeling the outside of acontainer for s weapon and conduct a more serious intrusion by
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visually checking the interior of the container or package, Agentsshould consider the ease to which the suspect would have access intothe container or package.|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
4-3.3 |De1eted|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
4~3.4 |De1eted|
**EffDte: O1/30/1997 HCRT#: 583 Div: D9 Cav: SecCls:
4-4 OTHER APPLICATION OF DETENTION AUTHORITY
**EffDte: 10/20/1983 HCRT#: O Div: D9 Cav: SecCls:
4-4.1 Material Witnesses
|!| r1t1= 1s, usc, Section 3149, provides that if thetestimony of a person is material in any criminal proceeding, and ifthere is probable cause to believe it would be impracticable to securethe witness presence by subpoena, a Federal judge or magistrate maydetain the witness or impose conditions of release e.g., bail bond!.The statute has been interpreted as permitting the courts to issuematerial witness arrest warrants without first having issued asubpoena, provided probable cause exists that the witness testimonyis material and there is a reasonable belieflhe/she|will flee or fail
to appear.
|!| Where an Agent is unable to secure a material witnesswarrant, yet has reason to believe the witness will leave the scenewithout identifying[himself/herself, he/shelmay detain for only solong as it takes to contact the U.S. Attorney or a Federal judge ormagistrate. Authorization for further detention or possible arrestshould be obtained only from a judicial officer.
**EffDte: 10/20/1983 HCRT#: O Div: D9 Cav: SecCls:
4-4.2 Personal Property
! Host investigative detention: involve personssuspected of committing crimes. The use of this procedure, however,has also been expanded to include detention of objects where the factsknown to the Agent are insufficient to justify probable cause for a
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search warrant, yet support a reasonable suspicion that the 0b]8¢t
contains contraband or other evidence of criminal activity. In such a
situation, the Agent may detain a package, box, trunk, or suitcase
temporarily while attempting to secure additional facts justifying a
search warrant.
! [An Agent may detain property for a reasonable period
of time or until his or her suspicions are dispelled, whichever comes
first. During this time, the privacy of the package and its contents
must not be disturbed. As with the detention of a person, the
reasonableness of the length of detention is a flexible concept. The
reasonableness of the length of the detention of the personal property
depends on the nature of the property, the container in which it is
located, the person from whom it was taken, and the circumstances of
the detention. Since a person relinquishes any possessory interest in
personal property given over to a third party, an extended detention
of such property when reasonable suspicion exists that it contains
evidence or contraband, even one lasting several hours, may be
reasonable. For example, a package deposited for shipment by postal
authorities may be detained for several hours. On the other hand,
where the property is seized directly from the possessor, such as
where a suitcase is taken from an airline passenger, and the detention
interferes with the possessor's freedom to proceed on his/her journey
as well as the possessory interest in the property, the duration of
the detention must be brief.f
! |Deleted]
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
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SECTION 5. SEARCH AND SEIZURE
**EffDte: 04/28/1978 HCRT#: 0 Div: D9 Cav: SecCls:
5-1 IN GENERAL See 8-3.2 and HIOG, Part 1, Section 91-9,Part 2,|Sections 11-1.3.1 !and l14.5.2.!|
! By the terms of the Fourth Amendment, a search for orseizure of evidence must be reasonable. Under the Fourth Amendment,all searches must be reasonable at their inception and reasonable intheir execution. Whether a search meets Fourth Amendment standardswill depend on the justification for the search and the scope of the
search conducted. In all cases, Agents must be prepared to articulatethe basis for the search and the manner in which it was conducted.
! The right of privacy is a personal right, not aproperty concept. It safeguards whatever an individual reasonablyexpects to be private. The protection normally includes persons,
residences, vehicles, other personal property, private conversations,
private papers and records.
! The Supreme Court has determined that there is no
reasonable expectation of privacy in certain areas or information. As
a result, government intrusions into those areas do not constitute a
search and, thus, do not have to meet the requirements of the Fourth
Amendment. These areas include:
a! open fields;
b! prison cells;
c! public access areas;
» d! vehicle identification numbers.
! The Supreme Court has determined that certain
governmental practices do not involve an intrusion into a reasonable
expectation of privacy and, therefore, do not amount to a search.
Consequently, these practices do not require compliance with the
Fourth Amendment. These practices include:
a! aerial surveillance conducted from navigable
airspace;
b! field test of suspected controlled substance;
c! odor detection.
! If a reasonable expectation of privacy is terminated,
subsequent governmental intrusion into the area does not constitute asearch under the Fourth Amendment. A reasonable expectation of
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privacy may be terminated by:
a! lawful government action frustrating theexpectation of privacy, such as U.S. Customs or Postal authoritiesopening packages in compliance with the laws governing their actions;
b! private party actions that frustrate theexpectation of privacy by revealing the contents of a package or area;or
c! an individual taking steps to voluntarilyrelinquish the expectation of privacy, such as abandoning property orsetting trash at the edge of the curtilage or beyond for collection.
! when there is doubt regarding the existence of areasonable expectation of privacy, it should be assumed that such anexpectation exists and Agents actions should comply with the FourthAmendment requirements.
**Ef£Dte: 12/28/2001 MCRT#: 1164 Div: D9 Cav: SecCls:
5-2 SEARCH UNDER SEARCH WARRANT
**Ef£Dte: 05/30/1991 MCRT#: 0 Div: D9 Cav: SecCls:
5-2.1 llkcquisition of Warrant: mm 41 of the FED.R.CRIH.P.and Policy See MIOG, Part 2, 10-18.3.!|
! Since the authority of a warrant is the beetassurance that a search will be deemed reasonable by the courts, it isthe policy of the FBI to obtain a search warrant before conducting asearch for evidence, or in some circumstances, for a person. SeeSection 3-7. The policy is subject to the following exceptions:
a! Search incidental to arrest;
b! Search by consent;
c! A search under emergency or exigent
circumstances;
d! A search under the vehicle exception;
e! An inventory.
! |Definition of Affidavit and Search Warrant Upon OralTestimony: Rule 41, FED.R.CRIH.P., provides that a search warrantshall issue only on an affidavit sworn before a federal magistrate orstate judge and establishing the grounds for issuing the warrant. Ifcircumstances make it reasonable to dispense with a written affidavit,
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a federal magistrate may issue a warrant based upon sworn oral
testimony communicated by telephone. The procedures for obtaining a
search warrant upon oral testimony are set forth in Rule 41 c!! and
are contained in the appendix to this handbook. Prior to obtaining a
search warrant, Agents should consult with the Office of the U.S.
Attorney. A copy of the affidavit filed before the magistrate is to
be retained as a serial in the case file.
! Who Hay Apply: The federal rule requires that the
request for a search warrant be made by a federal law enforcement
officer or by an attorney for the government.
! Who May Issue: Title 18, USC, Section 3102,
incorporates by reference Rule 41 a!, FED.R.CRIH.P, which grants power
to issue search warrants to a judge of the United States or of a
state, commonwealth, or territorial court of record or by a United
States magistrate. Thus Rule 41 a! authorizes only certain judicial
officers to issue search warrants. Constitutionally, the requirement
is that the issuing authority be neutral and detached and that he/she
have the capability of deciding probable cause.
! Jurisdiction:
a! General Rule: Federal rules provide that a
search warrant may be issued by a federal magistrate judge or judge of
a state commonwealth or territory court of record within the district
wherein the property or person to be searched is located.
b! Exceptions: The authority to issue search
warrants extends to situations where probable cause is established to
show the item s! or person s! named in the warrant is presently
located in another district but will be located within the
magistrates or judge's district at the time the warrant is executed.
A federal magistrate judge is also empowered to issue a search warrant
for property or a person s! upon a finding of probable cause to
believe that the item s! or person s! named in the warrant are within
the district at the time the warrant is issued, but might move outside
the district before the warrant may be executed. In such a case, a
search warrant issued by a federal magistrate judge would be valid,
even if executed in another district.
c! State, Commonwealth, and Territory Judges:
Other courts that are authorized to issue search warrants under the
Federal Rules are bound by the same limitations. Thus, if the judge
is empowered to act for the state at large, he/she may issue warrants
valid anywhere in the state. But, if the state judge's commission is
limited to less than state-wide jurisdiction, his/her warrants will be
valid only to the extent of his/her actual jurisdiction.
! Justification for Seizure:
a! Rule 41 b!, FED.R.CRIH.P. provides that a
warrant may be issued under this rule to search for and seize:
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l. Property that constitutes evidence of the
commission of a criminal offense; or
2. Property that is contraband, the fruits ofcrime, or things otherwise criminally possessed; or 92
3. Property designed or intended for use orwhich is or has been used as the means of committing a criminal
offense; or
4. Persons for whose arrest there is probable
cause or who are unlawfully restrained.
b! Where property to be seized constitutes "mereevidence," a connection must be shown between the items sought and the
criminal behavior. Broadening the grounds for which a search warrantwill issue to include evidence does not relax the prohibition against
general exploratory searches. The standard of particularity remainsintact. Probable cause is examined in terms of reason to believe that
a specific item of evidence sought will aid in a particular
apprehension or conviction.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
|5-2.1.1 Acquisition of Warrant - Particularity Requirement
In addition to the statutory requirements, a warrant must- also comply with the Fourth Amendment particularity requirement.
! Description of Place to be Searched: The Fourth
Amendment requires that the place to be searched be described with
particularity. The general rule is that the description should be of
_ sufficient particularity so that if an Agent with no knowledge of the 92
case were assigned to execute the search warrant, he/she would have no 92
difficulty in identifying and locating the person, place, or thing to
be searched.
a! Dwelling ~ The complete address and a brief
description of its outer appearance should be included. A phrase
which makes clear the search is to encompass the entire structure
should be included, and where appropriate, a description of
surrounding grounds and other related buildings and improvements, such
as storage sheds and detached garages. For example, the description
might be as follows:
"The premises at 1418 Cedar Drive, Dumfries,
Virginia; further described as a single-story
dwelling house, Georgian brick exterior, white
shutters, and a grey roof, and all rooms, attic,
basement, and other parts therein, and the
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surrounding grounds and any garage, storage
rooms, and out buildings of any kind located
thereon."
In giving a street address, it is important to
"South," "East," or "West," if that is part of"Street," "Place," or "Drive," as the case may
b! Apartment - An apartment
apartment building should be particularly desc
cause dictates otherwise.
included, where possible.Ispecify "North,"
the address. Also, the
be, should be shown.
unit, not the entire
ibed, unless probableThe apartment number or letter must be
If such a designation is not available, thelocation of the apartment within the building must be otherwisedefinitively shown. For example, "1324 Graham Park Road, Dumfries,Virginia, Apartment No. 1-A, further described as an apartment unitwithin a two-story, multiunit apartment house, white brick structurebearing the name Lynn House Apartments, and all rooms, attics, andother parts within Apartment No. 1-A, and all garages, trashcontainers, and storage areas designated for the use of Apartment No.1-A. "
c! Store or Business - The address, name of thebusiness and brief description of its outer appearance should be
stated. For example:
"The premises known as Joe's Coffee Shop,
located at 1314 Jefferson Davis Highway,
Triangle, Virginia, a coffee shop in s single-
story commercial building, with the word Joes'
appearing in large black letters on the front
window, and all rooms, dining areas, service
areas, kitchens, pantries, stoves,
refrigerators, restrooms and other parts within
the business, including an office located in the
rear of the premises, and any storage rooms,
storage areas, trash areas and trash containers
attached or unattached."
d! Vehicles As a general rule, the color, make,model and license number of the vehicle to be searched is sufficient
to constitute an adequate description. For example: "a red, 1999Ford Explorer, sport model, bearing VA license CFU 527." If thelicense number of the vehicle is unknown, details of its appearance,
so as to distinguish it from other vehicles, should be included.
Examples of such distinguishing characteristics would be: a brokenright headlight, a dented right fender, or a distinctive decal.
e! Persons - The description of a person shouldinclude his or her name, sex, race, age, height, weight, hair color,and eye color, as well as distinguishing tattoos or marks. If the
search of the person is being conducted in conjunction with the searchof premises, the Agent should include in the description his/herbelief that the person will be located within the described premises.
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f! Places Where Address is Unknown - If no addressis known or the location is not marked with an address, a specific
description will be especially important. The description should besufficiently detailed to avoid mistaking the place to be searched. Inthis regard, the use of photographs and diagrams as a supplement to a
written description should be considered. For example, "a small
wooden dilapidated red barn located on the west side of Jefferson
Davis Highway, approximately 1.7 miles south of Aquia Road in StaffordCounty, Virginia, as shown on the attached color photograph markedExhibit #1, and all rooms, lofts, storage areas, and the surrounding
grounds."
! Description of Property or Person to be Seized - TheFourth Amendment forbids a general exploratory warrant. Thus,property to be seized under a warrant should be identified as clearly
and distinctly as possible. As a general matter, if the property is
contraband, the possession of which is unlawful, it does not have tobe described in great detail; however, if it is noncontraband, then
greater detail is required.
a! If the property lends itself to ready
identification by physical description and serial number, both ofwhich are reasonably available to the Agent, then this informationshould be included in the affidavit. In other cases, the property
should be identified by brand name, and a specific quantity, will
serve to distinguish the property sought. For example, "That the
affiant has reason to believe, and does believe, that there is now
being concealed certain property, namely: a large number, believed tobe 3,000 Hamilton Beach electric blenders, which electric blenders
were part of an interstate shipment from Baltimore, Maryland, to
Richmond, Virginia." In this manner, bank robbery loot could be
sufficiently described by reference to the total amount or the
approximate number of bills of each denomination taken. Precise
descriptive data, such as complete, individual serial numbers, may be
impossible or impractical to furnish.
b! One area in which particularity of description
is essential concerns property that draws upon both First and Fourth
Amendment protections. Search warrants directed at the seizure of
books, papers must describe the particular items taken. An effort to
authorize the seizure of "obscene material," for example, fails
because such a warrant leaves to the discretion of the executing Agent
the determination as to what is and what is not "obscene." When the
material sought enjoys the added protection of the free speech and
free press provisions of the First Amendment, the clearest
identification possible is required.
c! Hhere the object of the search is a person to be
arrested within third party premises, such person must be describedwith particularity. The name of the individual is usually sufficient.If the true name is not known, an alias or physical description will
suffice.|
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**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
5-2.2 |Execution
In addition to possessing a lawfully acquired warrant,Agents must adhere to statutory and constitutional requirements duringthe execution of a warrant.I
**EffDte: 07/26/1999 hCRT#: 915 Div: n9 Cav: SecCls:
5*2.2.l Time|of Execution
! General Rule: Rule 4l c! l! FED.R.CRIH.P., provides"The warrant shall be served in the daytime, unless the issuing
authority, by appropriate provision in the warrant, and for reasonable
cause shown, authorizes its execution at times other than daytime."
The rule also defines "daytime" to mean the hours from 6:00 a.m. to
10:00 p.m., according to local time.
! Nighttime Execution: Before a valid nighttime 0:00
p.m. to 6:00 a.m.! search under a warrant can be made, two
requirements must be satisfied. Failure to comply with either of the
requirements below will make a nighttime search warrant invalid, and
thus any evidence seized during such search may be subject to
suppression. The two requirements are as follows:
a! In the search warrant Form A.0. 93!, the
magistrate must specifically indicate on the warrant itself that
he/she is authorizing a nighttime search. The magistrate does this by
selecting the option on the form which provides for service at any
time in the day or night and crossing out the other option, which
provides daytime service. Additionally, it has been held that amagistrate writing on the search warrant: "Authorized for Nighttime
Service" and signing the search warrant is sufficient to constitute
authority for nighttime execution.
b! Rule 41 also requires that the supporting
affidavit specify reasons amounting to a showing of good cause for
nighttime execution. Therefore, care must be exercised in justifying
any search planned for the period 10:00 p.m. to 6:00 a.m. The rule
does not expressly require a separate statement as to good cause for
executing the search warrant in the nighttime. The affidavit read as
a whole may be used to determine whether in fact such cause exists. A
statement in the affidavit requesting nighttime service should be
broad enough to include all the information contained in the
affidavit. For example, "Your affiant requests that this search
warrant be approved for service at any time of the day or night, based
on all the information contained in this affidavit." Absent an abuse
of discretion, the nagistrate's finding of good cause for nighttime
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service should not be disturbed by a reviewing court. Whether goodcause exists will depend on the facts of each case. Language in theaffidavit can strengthen the showing of good cause. For example, theaffidavit could specify that the stolen property will be removedbetween the hours of 10:00 p.m. and 6:00 a.m. and not merely "in thenighttime."|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
5-2.2.2 |Manner of Entry See 5*6.2 and MIOG, Part 2,
11~2.1.5.!
Title 18, USC, Section 3109, requires Agents to "knock andannounce" their identity, authority and purpose and demand to enterbefore entry is made to execute a search warrant. This is alsoconsidered part of the "reasonableness" requirement of the FourthAmendment for searches. The announcement need only be given by oneAgent and need not be lengthy or elaborate but should be conveyed in amanner that the person behind the door knows what is taking place. Aloud announcement is essential; where communication is anticipated tobe difficult, electronic devices designed to amplify the voice shouldbe used. The following statement should suffice: "F-BI - we have awarrant to search your residence - open the door." The same rulesapply with respect to entries into premises to make an arrest. SeeSection 3-7.! The "knock and announce" requirement need not becomplied with where the Agent executing the warrant has a reasonablesuspicion of any one or more of the following:
! to "knock and announce" would cause the Agent and/oranother to be placed in imminent peril of bodily harm;
! to "knock and announce" would be a useless or futilegesture as the persons within the premises already know of theAgent's identity, authority, and purpose;
! to "knock and announce" would cause the evidencesought under the warrant to be destroyed or removed; or
! to "knock and announce" would permit the escape of a
person the Agent seeks to arrest.
Use of fraud, deceit, or misrepresentation to obtain entry into
constitutionally protected premises does not violate Title 18, USC,Section 3109 inasmuch as entry is made without the use of force.Nevertheless, such a practice is generally unnecessary and should beavoided unless extraordinary circumstances are present. The use oftrickery or deception by an Agent to get an outside door open, beforeannouncement of the Agent's identity, authority, and purpose, is
permissib1e.|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
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s-2.2.3 Ilioved to s2.2.z|
**s£rnr== 07/26/1999 ncRT#= 915 Div: D9 Cav: SecCls:
5-2.2.4 Ikeasonableness of Force See MIOG, Part 2, 11-2.1.5.!
The manner of entry to conduct a search must be
reasonable. The reasonableness of the entry will depend upon the
response of the person against whom the search is directed. If the
person complies with the entry demand, the Agents may peaceably enter
and conduct the search. If the person refuses to comply, an immediate
forcible entry should be made. The force used should be sufficient
to allow Agents to promptly and safely gain access to the premises but
no more. Ordinarily this would allow for the breaking open of a door
and/or window. Devices such as pry bars, axes, and battering rams may
be used for the purpose of making immediate forcible entries. If the
person behind the door remains silent or responds ambiguously to the
demand, Agents must wait a reasonable amount of time before making a
forcible entry. Examples of ambiguous responses are: "I'm getting
dressed" or "Take it easy" or What's the rush." A reasonable time
depends on the circumstances, particularly on the object of the
search. What may be reasonable with respect to stolen typewriters may
not be reasonable where gambling records on flash paper or water-
soluble paper are sought. As a general practice, Agents should
document the amount of time that lapses between the demand for entry
and the forcible entry itself. Agents are under no obligation to
argue or negotiate with a person whose property is to be searched.
Nor should they display credentials through peepholes, slide copies of
the warrant under the door, or otherwise delay the execution of the
warrant beyond the procedure described above.|
**Ef£Dte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-2.2.5 |Control1ing the Premises See 5-2.2.18 !.!|
After having made entry, Agents should take whatever
reasonable steps are necessary to protect themselves. They may
control the movements of persons found inside the premises and may
conduct a limited search of people for weapons if the Agent has a
reasonable suspicion that they are armed. While executing a search
warrant on premises, Agents have authority to detain occupants while
the search is being conducted. Agents may conduct a limited search of
persons for weapons only if Agents have a reasonable suspicion that
the person searched is armed. Restraining devices may only be used
when to do so is reasonable under the circumstances. Title 18, USC,
Section 2231 makes it a felony to assault, resist, oppose, prevent,
impede, intimidate or interfere with an Agent attempting to execute a
search warrant. Hence, a person may not obstruct the execution of a
warrant and can be immediately arrested for doing so. A violation may
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be shown even though the person does not use force or violence. As a
general rule, Agents should exercise this authority with restraint.
Offensive or abusive language should not be interpreted as resistance
or opposition. Agents who arrest under this statute should be
prepared to prove some overt act was preformed in an effort to defeat
the purpose of the warrant. Threats with a weapon or acts denying
access of an Agent to a place to be searched are examples of such
overt acts. Destruction or removal of evidence sought under the
warrant is a separate criminal violation Title 18, USC, Section 2232!
as is any forcible attempt to rescue property already seized by the
searching Agents Title 18, USC, Section 2233!.|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
5-2.2.6 |Scope of Search Formerly 5-2.2.5 and 5-2.2.7!
Once entry is lawfully gained and the premises secured,
the search may extend to all places within the premises where the
evidence or person sought could logically be concealed. Such places
may include personal property found on the premises described, such as
duffel bags, suitcases, and automobiles. The scope of the search,
therefore, is directly related to and is controlled by the objective
of the search. Agents are under no obligation to begin or end the
search at any particular place within the premises. The search
warrant does not permit searches of persons found within the premises
for evidence unless such persons are particularly described in the
warrant or an exception to the warrant requirement exists. The search
warrant is not a license to destroy property or harass individuals.
It does allow, under limited circumstances, highly intrusive searches
which will disrupt or damage property if it is reasonable to believe
that the items listed in the warrant are located there. Thus, it may
be reasonable, for example, to pull up a floor, tear down a wall or
dig up a garden. If it is anticipated that the search will include
such action, Agents should consider including this in the warrant
iffid8V1t.|
**E£fDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
5-2.2.7 |Plain View Doctrine Formerly 5-2.2.8!
Where Agents are lawfully present, such as during the
execution of a search warrant or when acting consistent with one of
the recognized exceptions to the warrant requirement, and they observe
an items s! which they have probable cause to believe is evidence or
contraband, they may lawfully seize that item s!. To validate a plainview seizure, the Agent must therefore be in a lawful position to
observe the item s! and it must be immediately apparent to the Agent
that the item s! are evidence or contraband. The plain view doctrine
is not an exception to the warrant requirement and does not authorize
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Agents to enter constitutionally protected premises to seize the
item s!. The plain view doctrine simply gives Agents the authority to
seize an item s! in plain view when acting consistent with a warrant
or an exception. The plain view doctrine will not justify a
warrantless entry to a person's premises where the plain sight
observation occurs from a place beyond the area protected by the
Fourth Amendment the premises!, nor will it permit the seizure of
evidence from a place within a premises where the Agent has no right
to be, even though the Agent is lawfully on the premises. For
example, if during the arrest of a subject in his/her premises, an
Agent seizes contraband during a lawful search incident to arrest, the
Agent may not expand the scope of the search simply because he or she
is lawfully on the premises.[
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
I5-2.2.8| Resistance or Interference | Formerly 5-2.2.9!|
Title 18, USC, Section 2231, makes it a felony to assault,
resist, oppose, prevent, impede, intimidate or interfere with an Agent
attempting to execute a search warrant. Hence, a person may not
obstruct the execution of a warrant, and can be immediately arrested
for doing so. A violation may be shown even though the person
resisting does not use force or violence. As a general rule, Agents
should exercise this authority with restraint. Offensive or abusive
language should not be interpreted as resistance or opposition.
Agents who arrest under this statute should be prepared to prove some
overt act was performed in an effort to defeat the purpose of the
warrant. Threats with a weapon or acts denying access of an Agent to
a place to be searched are examples of such overt acts. Destruction
or removal of evidence sought under warrant is a separate criminal
violation Title 18, USC, Section 2232!, as is any forcible attempt to
rescue property already seized by the searching Agent Title 18, USC,
Section 2233!.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
s-2.2.9 |Hoved to 5-2.2.s|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5~2.2.10 |Hoved to 52.2.2|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-2.2.11 Leaving Warrant and Receipt See 5-2.2.12
and|5-4.1O.!|
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Agents who have executed a search warrant are to give a
copy of the warrant and attached affidavit, where applicable, to the
individual whose person, premises, or property is searched whether or
not any evidence is seized under the warrant. In addition, a receipt
is to be given for any money, documents, or other property seized,
whether under authority of the warrant or otherwise. Thus, items
seized in plain view or a weapon taken for safety reasons, though not
described in the warrant, should be included in the receipt. The
receipt is to be in the form of an itemized list of all property
taken. Agents should ensure that the description of all items is
adequate and accurate. The receipt should be prepared in triplicate.
The original will accompany the warrant upon return to the U.S.
magistrate. One copy is given to the person searched, the other
retained in the case file.
**E££Dte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls
52.2.12 Return
The return of a search warrant is the report to the
issuing magistrate that the warrant was executed, and should be made
as soon as practicable after execution. A form for return is provided
on the reverse side of Form A.0. 93 Search Harrant!. A written
inventory of property taken pursuant to the warrant must accompany the
warrant upon return. The inventory consists of an itemized list of
things seized, and is to be made by the Agent who applied for the
warrant, or inlhis/her|absence, another Agent conducting the search.
The inventory should be prepared in the presence of the person from
whom the property was taken, or in|his/her|absence, another credible
person. A copy of the receipt for property taken, furnished the
person searched see Section 52.2.l1, above!, may be used as the
written inventory by attaching a copy to the warrant at the time of
return and so noting in the inventory section of Form A.0. 93.
**E£fDte: 08/25/1980 HCRT#: 0 Div: D9 Cav: SecCls:
5-2.2.13 Securing the Premises
Upon conclusion of a search made under warrant, it is the
responsibility of the searching Agents to make certain the place
searched has been secured. In the absence of a resident, they are to
take whatever steps are necessary to render the premises inaccessible
to neighbors, vandals, etc. Where a door has been broken upon entry
it should be repaired, replaced or boarded up before Agents depart.
If a third party, such as a carpenter, is required to secure the
premises, an Agent should remain until such work is completed.
Premises disrupted by a search should be restored to its condition
prior to search insofar as possible. Where it is anticipated that
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later claims of harassment will be made by those affected by the
search, it is sound practice to photograph the interior of premises
before departure. The foregoing policy is designed to protect Agents
against later allegations of impropriety or illegality.
**EffDte: 05/01/1985 MCRT#: 0 Div: D9 Cav: SecCls:
5-2.2,l4 Damage to Property
Where performance of duty results in damage to private
property, such as a broken door, the property owner may be entitled to
compensation, even where there was legal justification for the entry
and search. Government funds are available for satisfaction of
justified claims arising from such damage. In a case where a claim
has been filed or is likely to be filed:
! The property owner or|his/herldesignated I
representative should be interviewed;
! A reliable estimate of repair costs should be
obtained;
! A minimum compensation figure acceptable to the owner
should be determined. FBIHQ should be advised by letter of the above
information, together with the SACs recommendation as to whether the
claim should be paid, and if so, the estimate of a reasonable amount.
Claims should be handled promptly. Efforts should be made to settle
claims on an amicable basis, rather than allow a minor matter to
escalate into a major problem.
**E£fDte: 05/01/1985 MCRT#: 0 Div: D9 Cav: SecC1s:
5-2.2.15 Criminal Liability
An Agent who, maliciously and without probable cause,
procures a search warrant is guilty of a criminal offense. In
executing a search warrant|he/she|is criminally liable where
|he/shelexceeds|his/herlauthority or exercises it with unnecessary
severity. Any Agent who, maliciously and without probable cause,
searches property with a search warrant is likewise guilty of a
Federal criminal violation Title 18, USC, Sections 2234, 2235, 2236!.
**EffDte: 05/01/1985 HCRT#: 0 Div: D9 Cav: SecCls:
5-2.2.16 Forfeiture of Property See|5-8.3|and HIOG.! I
Forfeiture is a procedure created by statute, penal in
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nature, which fosters an underlying criminal statute by depriving a
wrongdoer of property used in a criminal enterprise. Forfeiture is
generally disfavored in the law and statutes authorizing forfeiture
are strictly construed. Such statutes are primarily aimed at the
curtailment of trafficking in narcotics, firearms, and counterfeit
money. However, forfeiture may be sought by the Government under
other criminal laws, such as the possession of property used in an
illegal gambling business. Under Title 18, USC, Section 1955 d!,
Agents are empowered to seize for forfeiture purposes any property,
including money, used in an illegal gambling business. An inventory
is to be prepared of the property seized and a receipt given for it at
the time of seizure or as soon thereafter as practicable. The
property taken is to be held for or turned over to the U.S. Marshal
for the district in which the seizure was made when not held as
evidence 8 CPR Section 9a.3!.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
52.2.17 Recovery of Honey
Whenever money or other property consisting of numerous
items requiring counting is obtained in connection with an FBI
investigation, the money or property is to be independently counted by
two Agents and their results compared for the purpose of verifying the
accuracy of the count and detecting any errors.
**EffDte: 05/01/1985 HCRT#: 0 Div: D9 Cav: SecCls:
5-2.2.18 Freezing Premises Pending Issuance of a Search Warrant
! Agents who have probable cause to believe evidence is
inside certain premises may encounter the need to secure those
premises to prevent the destruction or removal of evidence while a
search warrant is being obtained. When such a need arises, Agents
should, whenever possible, secure the premises from the outside and
refrain from entering the premises until execution of the warrant. If
lawful entry has already been obtained, the Agents should assure that
there remains no threat to themselves or to the evidence, then leave
and secure the Premises from the outside.
! If no entry to the premises has yet occurred, but
Agents have reason to believe entry is necessary to protect themselves
or others or to prevent the destruction of the evidence, entry may be
made. Upon eliminating the threat to their safety or the evidence,
the Agents should then leave and secure the premises from the outside.
! There will be instances, however, when Agents who
make a justified entry will not be able to leave the premises. The
presence of other occupants or residents of the premises who have and
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exercise a lawful right to remain may require the Agents to remain
inside the premises while the search warrant is obtained. In such a
case, the Agents may control the movements of persons found inside the
premises consistent with the need for the Agents continued presence.
Agents must, however, exercise reasonableness in their efforts to
control those present and attempt to minimize the intrusion. Such
restrictions on the movement of persons inside the premises are
consistent with instructions contained in Sections 4-2.4 and 5-2.2.5.
! Regardless of which method Agents use to secure
premises pending issuance of a search warrant, the efforts to obtain
the warrant must begin promptly. An unjustified prolonged "freeze" of
premises might lead a court to find the seizure of the premises to be
unreasonable.
! Additionally, if entry is made based on an Agent's
reasonable|suspicion|that entry is necessary to prevent harm to Agents
or|on probable cause that evidence will be destroyedland items of
evidence or contraband are seen in plain view, Agents should refrain
from seizing those items immediately, except where immediate seizure
is the only method reasonably available to prevent harm or
destruction. Rather, when possible, the items observed in plain view
should not be seized until the search warrant is obtained and
executed. Certainly, if dangerous instrumentalities are observed,
e.g., weapons, explosives, etc., they should be seized or otherwise
secured immediately if such action is necessary to assure the safety
of the Agents|or|others.
! |Deleted|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
5-2.2.19 Searching and Seizing Computers See HIOG, Part 2,
|1o-18.3.!!
There is no legal difference in the search and seizure of
computers and other document searches. Fourth Amendment principles
apply to computer searches as well as to traditional searches. Thus,
there is a strong preference for obtaining warrants in order to avoid
the judicial scrutiny that will necessarily take place as a result of
a warrantless search. However, the key to conducting a search or
seizure of a computer is planning. Before preparing a warrant to
seize all or part of a computer system and the information it
contains, it is critical to determine the computer's role in the
offense. The computer may be a tool of the offense i.e., used to
commit the offense! or it may be incidental to the offense, but a
repository of evidence. In some cases, the computer may serve both
functions at once. Another concern in preparing a search warrant is
determining what should actually be searched and/or seized. Probable
cause to seize a computer may not necessarily mean there is probable
cause to seize the entire computer system and all of the attached
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hardware. Each component of a computer system should be given
independent consideration. When preparing a warrant, only those
components for which there is an articulable independent basis to be
searched or seized should be listed. For additional guidance
regarding the search and seizure of computers, see "Federal
Guidelines For Searching and Seizing Computers," 56 CRIMINAL LAN
REPORTER, Page 2023 994!.
Chief Division Counsel.
**EffDte: 10/09/2001 HCRT#:
5-3
**EffDte:
5'3.1
**E£fDte:
5-3.2
**EffDte:
5-3.3
**EffDte:
5-30 IINTRODUCTION:
REQUIREMENT
A warrantless search is presumptively unreasonable.
However, there are recognized exceptions to the warrant requirement.
While these exceptions authorize Agents to conduct a search consistent
with the permissible scope of the exception, due to the preference for
a warrant, Bureau policy requires Agents to obtain search warrants
when time permits. When conducting a warrantless search, Agents are
reminded that the burden is on the government to demonstrate that the
exception applied and that the government stayed within the
permissible scope of the exception. The exceptions include the
following:
Consent
Emergency Searches
Search Incidental to Arrest
The Motor Vehicle Exception
Inventory]
07/26/1999 HCRT#: 915 Div: D9 Cav:
[Moved to s-6.1|
07/26/1999 MCRT#: 915 Div: D9 Cav:
Ihoved to 5-6.2|
07/26/1999 MCRT#: 915 Div: D9 Cav:
|De1eted|
07/26/1999 HCRT#: 915 Div: D9 Cav:
|Revised and Hoved to 5-6.3|EXCEPTIONS T0 THE SEARCH WARRANTQuestions should also be directed to the
1159 Div: D9 Cav: SecC1s:
SecC1s:
I
SecC1s:
I
SecC1s:
I
SecC1s:
I
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and . . ._- __ ...__ .___ __ __ ,___ , ,,_7____n'||||>-~-
Haul-ID: LHBSAP1 LEGAL HANDBOOKSENSITIVE
FOR SPECIAL AGENTS PART
**EffDt0:
5-3.5
**EffDte:
5-3.6
**EffDte:
5-3.7
**EffDte:
5-3.8
**EffDte:
5-3.9
**EffDte:
5-3.10
**EffDte:
5-3.11
**Ef£Dte:
5*3.12
**EffDte:
5-4
**EffDte:
5-4.1 Exceptionlto Search Warrant | Sce HIOG, Part 2, I07/26/1999 MCRT#: 915
|De1eted|
07/26/1999 HCRI#: 915
|De1etod|
07/26/1999 MCRT#: 915
|Hoved to 5-6.3]
07/Z6/1999 MCRT#: 915
{Moved to 5-6.4|
O7/26/1999 HCRT#2 915
Ioved to 5-6.3|
07/26/1999 MCRT#: 915
[De1etod|
O7/26/1999 HCRT#: 915
|De1eted|
07/26/1999 HCRT#2 915
|Deleted|
07/26/1999 HCRT#: 915
SEARCH BY CONSENT
O7/26/1999 MCRT#: 915
10-18.3.!Div:
Div:
Div:
Div:
Div:
Div:
Div:
Div:
Div:
Div:D9
D9
D9
D9
D9
D9
D9
D9
D9
D9Cav:
Cav:
Cav:
Cav:
Cav:
Cav:
Cav:
Cav:
Cav:
Cav:SecC1s:
SecC1|:
SocC1|:
SecC1s:
SecC1::
SecC1s:
SecC1s:
SecC1s:
SecC1s:
S0cC18:
Bureau policy requires Agents to obtain search warrant:
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whenever possible. However, a consent is a relinquishment of Fourth
Amendment rights by the consenting party, and thus is reasonable even
in the absence of probable cause and where searching Agents cannot
particularly describe the materials being sought.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-4.2 Consent to Search: Prerequisites
In order to establish valid consent, ents must be able
to establish that the person providing consent had actual or apparent| I
authority to do so and the consent was voluntary.
**1:s£nt== 10/09/2001 MCRT#: 1159 Div: n9 Cav: SQCCIIS
I5-4.3| Lawful Possession | Formerly 5-4.2!] |
Agents seeking permission to search without a warrant must
obtain consent from a person authorized to give it. Only a person in
lawful possession may give consent. He/She is the person who
currently possesses the premises or personal property. Ownership is
not the equivalent of lawful possession where the owner has
temporarily yielded his/her right to possess, as in the case of
landlord and tenant, or innkeeper and guest. Nor is lawful presence
the same as lawful possession. A guest or invitee, lawfully on
premises, is generally not authorized to give up rights possessed by
- his/her host. Agents should make certain that consent is obtained
from one in authority. Any doubts as to who possesses the premises or
other property should be resolved before proceeding. Agents should
carefully question any person present who might be of help in deciding
who is authorized to consent. The Supreme Court has held that a valid
consent may be obtained from one with "apparent" authority over the
property. This assumes that the Agents have made a good faith effort
to ascertain who has actual control, and are therefore reasonable in
believing that the person from whom consent was obtained had such
control.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
|54.4| Joint Possession | Former1y 5-4.3!| |
! Where two or more persons jointly possess the
property, any of the individuals may consent to the search, at least
as to those areas or things which are commonly possessed. A joint
possessor assumes the risk of disclosure when he/she agrees to share
the property with another. Places or items of personal property
reserved for the exclusive use of one person may not be searched by
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consent of another. Thus, the joint tenant in an apartment may
consent to a search of all commonly possessed areas and things within
the premises, such as the bathroom, kitchen, linen closet, china
cabinet, but may not consent to the search of a bedroom or closet or
briefcase possessed exclusively by the other tenant. A consent search
should not be undertaken where both joint possessors are present, and
one objects to the search. The rules relating to joint possession
apply in a wide variety of relationships; e.g., husband and wife,
paramours, business partners, confederates in crime.
! As a general rule, parents may consent to the search
of a family dwelling directed against children residing therein and
being supported by the parents. On the other hand, since the Fourth
Amendment protection belongs to the parents, children may not
relinquish the parents rights by consenting to a search of the family
home directed against them. An employer may be barred from permitting
a search of personal property reserved for the exclusive use of an
employee. Thus, by terms of an employment contract, an understanding
of the parties, or by accepted custom and practice, an employee might
acquire a reasonable expectation of privacy in his/her desk or locker
or toolbox, and his/her employer would not be empowered to permit a
search thereof. The capacity of an employee or agent to permit the
search of business premises depends upon the authority given
him/her by his/her employer or principal. A Bureau Agent seeking
consent to search business premises, in the absence of the resident
manager, should obtain consent from the highest ranking official
available. While a search warrant is preferred, business records may
be searched by consent. Such consent should be obtained from the
records custodian or resident official in charge.
**E£fDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
I5-4.5| Voluntariness | Former1y 5-4.4!] |
The critical issue in any consent search is whether the
consent is voluntary; that is, whether it is the result of a free and
unconstrained choice. It is the government's burden to prove the
consent was not coerced. Agents, therefore, should avoid any actions
or statements likely to elicit submission to their authority rather
than a free choice. No single criterion is used to determine
voluntariness, but rather the sum total of surrounding circumstances
--- such considerations as the number of Agents present, the time of
search, the manner of request, the display of weapons, the physical or
mental condition of the consenter. Formal custody alone will not
invalidate a consent. Thus, a person under arrest may give permission
to search his/her house, car, or other property. Use of physical
force or threats, however, will render a consent involuntary.
Likewise, fraud, deceit, or misrepresentation will taint the consent.
But a consent to enter, obtained by such means in an undercover
operation, is proper.
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**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
5-4.6 Warning of Rights Formerly 5-4.5!
In order to establish a voluntary consent, the government
is not required to prove a warning of Fourth Amendment rights was
administered before the consent. Nevertheless, since it is a factor
bearing on the voluntariness of consent, Agents|shou1d|inform |
individuals from whom consent is sought that they have a right to
withhold consent. The warning is contained in the standard Consent to
Search Form, FD-26.
**EEfDte: 10/09/2001 MCRT#: 1159 Div: D9 Cav: SecCls:
[5-4.7| Proof of Consent | Formerly 5-4.6!| I
Consent to search should be obtained in writing, if
possible. Form FD-26 is to be used for this purpose. In the event an
individual orally consents, but will not sign the form, Agents should
make a record of the consent on the FD26. The form should be
completed except for the signature of the consenting party, and Agents
should note thereon the fact of consent, preferably in the language of
the consenter. The completed FD-26 should be retained in the exhibit
envelope of the case file. -
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
I5-4.8| Limitations on Consent l Formerly 5-4.7!] |
The consenting party controls the conditions of a search.|He/She|may revoke the consent, at which time Agents should terminate Ithe search, orlhe/she|may otherwise limit the scope or time of search.
Agents must conform to such limitations.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
I5-4.9] Implied Consent | Formerly 54.8!| I
Neither silence nor a failure to object can be considered
a voluntary consent. Agents should not rely on such conduct or any
other ambiguous response as a relinquishment of Fourth Amendment
rights. Rather, they should obtain an express consent in writing
FD-26!, or where that is not possible, a specific verbal consent.
**E££Dte: 07/26/1999 ncnr#= 915 Div: 09 cw: SecC1s:
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I5-4.10 Receipt Formerly 5-4.9!| I
A receipt| FD~597!|is to be prepared and given to the I
consenting party for any property seized during a consent search. The
receipt is to be in the form of an itemized list, accurately and
adequately describing all property taken, prepared in duplicate, one
copy for the consenter, the original for the case file. | Sees-2.2.11.!| I
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
s-s znsnczncv SEARCHES | See Appendix, 4-1.!! |
! In general: The law recognizes the authority of
Agents to conduct warrantless searches when it is not practicable to
obtain a warrant. Agents should be prepared to justify their conduct
and demonstrate that they stayed within the permissible scope of the
exception.
! Prerequisite: A warrantless search is lawful under
the following circumstances:
a! When Agents have reasonable suspicion that there
is a threat to life or safety, or
b! Hhen Agents have probable cause to believe that
a dangerous individual after whom they are in hot pursuit will escape
or that evidence will be destroyed or removed.
! Scope: Agents are permitted to take reasonable and
necessary steps to eliminate the emergency. Once the emergency is
eliminated, the justification for acting without a warrant is over.
**EffDte: 10/09/2001 MCRT#: 1159 Div: D9 Cav: SecCls:
5-6 |SEARCl-I INCIDENTAL T0 ARREST See 3-8 and MIOG, Part
2, ll-1.3 through 11-1.3.2.! Formerly 5-3!|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
5-6.1 Right to Search Formerly 5-3.1!
Few rules are as firmly embedded in search and seizure law
as that which permits a search incidental to arrest with or without
arrest warrant. The authority to search following a full custody
arrest is an exception to the warrant requirement and allows a full
and complete search for weapons or implements of escape, and for
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evidence of criminal activity or contraband. The purpose of the
search is to protect the arresting Agent, prevent escape, and preserve
any evidence in possession of the arrestee. The right to search flows
from the fact of arrest. The nature of the crime,
misdemeanor, violent or nonviolent, has no bearing
search. The imposition of physical custody is the
search. Any search incidental to arrest|should|bewhether felony or
on the right to
key to any such
made by two or more
Agents.
**EffDte: 10/O9/2001 HCRT#: 1159 Div: D9 Cav: SecCls:
|5-6.2 Prerequisite: Lawful Arrest Formerly 5'3.2!
! For a search incident to arrest to be lawful the
arrest itself must be lawful. The existence of probable cause will
suffice to establish a lawful arrest. The best assurance'that the
arrest and incidental search will survive attack by the defense is to
obtain an arrest warrant before imposing custody. As discussed below,
entry into premises to arrest may also affect the validity of search
incident to arrest.
! Entry into Suspect: Premises: In addition to
probable cause, Agents must also ensure that any entry into premises
is lawful. In the case of entering the defendant's premises to
arrest, Agents must have consent to enter, or an emergency "hot
pursuit"! must exist, or an arrest warrant must be outstanding and the
Agents have probable cause to believe that the defendant is within the
premises. Agents are also reminded that prior to making entry to
arrest into the subject's premises, Agents are to comply with the
requirements set forth in section 52.2.2, entitled "Manner of Entry,"
in order to ensure that the arrest is lawful.
**EffDte: O7/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
I5-6.3 Scope and Timing Requirement Formerly 5-3.4, 5-3.7,
and 5-3.9!
! Scope of Search
a! Person of arrestee and area within the
arrestee's immediate control: following a lawful arrest an Agent is
entitled in all cases to search the person of the arrestee and the
area within the arrestee's immediate control at the time of arrest for
weapons, means of escape and evidence of any criminal activity. The
search may include any portable personal property in the arrestee's
actual possession, such as clothing, purses, briefcases, grocery bags,
etc. The area within the arrestee's immediate control is any place
from which the person arrested may seize a weapon or destructible
evidence. Items of personal property which are accessible to the
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arrestee, such as an unlocked desk drawer or unlocked suitcase may be
searched. However, absent an emergency, inaccessible or locked items
of personal property may not be searched. If there is probable cause
to believe they contain evidence, they may be seized, and a search
warrant should thereafter be obtained prior to opening. 92
b! Vehicles: Following a lawful custodial arrest
of the driver or occupant of a vehicle, the interior passenger
compartment of the vehicle may be searched, as long as the arrest
occurs within or in close proximity to the vehicle and the search
occurs substantially contemporaneous to the arrest. The purposes of
this search would be to locate weapons, means of escape, and evidence
of any criminal activity that could be destroyed and thus, the scope
would include unlocked and or otherwise accessible containers such as
glove compartments, luggage, bags, clothing, etc. See 5-7.!
c! Protective Sweep: Following a lawful arrest
within premises, Agents may properly conduct a protective sweep of the
areas immediately adjacent to the site of the arrest for the purpose
of locating persons that may pose a threat of safety to the Agents or
others. In addition, a protective sweep in other areas, beyond thoseimmediately adjacent to the site of the arrest, may be conducted if
the Agents possess a reasonable suspicion based on specific and
articulable facts that the area to be swept harbors an individual
posing a danger to those on the arrest scene. Reasonable suspicionmust be based on facts known to the Agents such as noises in an attic
or the at-large status of a dangerous associate. A protective sweep
must be limited to a brief inspection of only those areas within thepremises which could conceal a person capable of interfering with the
arrest. If an Agent, while conducting the protective sweep, observes
evidence in plain view, it may be seized under that doctrine.
! Timing: The search of a person incidental to arrest
generally should be made at the time and place of arrest by Agentsimposing custody. A further more thorough search of a prisoner at the
FBI office or some other place to which the arrestee is transported isjustified as incidental to arrest. A search of the area immediatelysurrounding the arrestee should be conducted at the time of or shortly
after the arrest, while the person taken into custody is stillpresent. In addition, Agents may automatically make a protectivesweep of the areas immediately adjoining the site of the arrest tolocate persons and may conduct a protective sweep of other areas based
on a reasonable suspicion that the other areas harbor a person that
may pose a danger to the Agents or others.[
**Ef£Dte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
I5-6.4 Inventory of Personal Property Formerly 5-3.8!
Items of personal property removed from a person who has
been arrested and is to be incarcerated should be carefully
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SENSITIVE
Hanl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
inventoried by Agents prior to being stored for safekeeping. A
receipt for such property should be prepared and given to the
arrestee. This inventory should include the contents of containers
such as purses, shoulder bags, suitcases, etc., whether or not the
containers are locked or sealed. In the event such containers are
locked or sealed great care must be taken to minimize damage to the
container or its contents while gaining access. This caretaking
function must not be construed as an alternative to a search warrant
whenever there is probable cause to believe that evidence or
contraband is inside a container. Under those circumstances the
container should be secured until a search warrant can be obtained.|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-7 IMOTOR VEHICLE EXCEPTION Formerly 5-7.1!
A warrantless search of a vehicle is permissible where
Agents have probable cause to believe the vehicle contains evidence of
a crime and the Agents have lawful access to the vehicle. Since the
authority to search is directed against the vehicle, search of the
driver and occupants for evidence is not permissible, although a
limited search for weapons may be permissible if the Agent has
reasonable suspicion the person s! is armed. The scope of the search
of the motor vehicle is the same as with a warrant. Thus. if lb!
probable cause is applicable to the vehicle, the search may extend to
any part of the vehicle or containers therein where the evidence
sought could reasonably be located. Conversely, if the probable cause
is limited to a container located inside a vehicle, the search must be
confined to that container. Since the factual predicate for a vehicle
exception search is the same probable cause needed to obtain a search
warrant, consideration should always be given to the practicability of
obtaining a warrant before using the vehicle exception. See 5-6.3.!|
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
5-7.1 |Hoved to 5-7| |
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-7.2 [Moved to 5-a.1 and 5-a.2| |
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-7.3 [Moved to 5-8.3] I
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-7.4 |Deleted| I
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' """" WIMHIW
nu can 111 . _.<-92-hi .._ . -.. w-I lllll - H-|-ii-.-.-W...
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Hanl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
5-8 | INVENTORY SEARCHES
In certain situations, Agents may have reason to seize
personal property but have no investigatory reason for searching the
property. As part of an administrative caretaking function, Agents
seizing such property must be concerned about its custody, storage and
inventorying the contents of the property. The inventory is a search
made reasonable by the lawful possession of the property and adherence
to the FBI's policy on conducting inventory searches. This caretaking
function is based on the need to protect the property owner's
interests while the property is in the custody of the FBI, to protect
the FBI and its employees against claims or disputes over lost, stolen
or vandalized property and to protect employees from potential danger.
An inventory search may not be a ruse for a search for evidence of
criminal activity.|
**EffDte: O7/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
I5-8.1 Scope of the Inventory Search Formerly 5-7.2!
Upon seizing personal property, a prompt thorough search
of the contents of the property, whether locked or unlocked, including
any containers located therein whether locked or unlocked, should be
conducted and an FD302 prepared showing the results of the inventory.
The FD302 should include, but not be limited to, a description of the
property and a description of the valuables secured for safekeeping.
In order to facilitate the preparation of the FD-302, form FD653
Motor Vehicle Inspection Inventory Record! may be used in connection
with seizure of motor vehicles. The FD302 may simply refer to the
FD-653 and be attached thereto. Where practicable, the inventory
should be conducted by two persons. Nonevidentiary items of
significant value should be removed for safekeeping and afforded
adequate security. Contraband or evidence found should be immediately
seized and preserved in accordance with existing procedures governing
the seizure of physical evidence. A receipt should be given for all
items retrieved during the search. See 5-8.2 below and HIOG, Part 1,
Sections 26-2.5, 26-2.7, and 149-3, and HAOP, Part 2, Section 2, re
evidence retention.![
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
|5~8.2 Impoundment Inventories Formerly 5-7.2!
Vehicles are often seized with no investigatory reason for
searching the vehicle and its contents. In such situations, Agents
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have a routine administrative caretaking responsibility regarding the
custody, storage, and inventorying of the contents of the vehicle.
The following procedures should be used whenever Agents impound
vehicles:
! The U.S. Marshal should be contacted to arrange for
storage if no adequate Bureau facilities are available.
! A receipt for the vehicle should be prepared at the
time of the seizure or as soon thereafter as practicable.
! A prompt, thorough inventory of the interior
including trunk and glove box! and any containers therein, whether
locked or unlocked, should be conducted and an FD-302 prepared showing
the results of the inventory. The FD302 should include, but not be
limited to, the following:
r a! Description of the car year, color, VIN,
license number!
b! Description of all valuables secured from the
vehicle for safekeeping
c! Listing of all accessories, tools, and
unattached parts left in the vehicle
d! Notation describing the condition of the body
and upholstery specifically naming the damage or deteriorated areas
and briefly stating the damage!
' e! Listing of all missing items such as keys, -
motor, radio, battery, spare tire, etc.
See 5-8.1 re use of FD-653.!|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
|5-8.3| Forfeiture of Vehicles | Former1y 5-7.3! I
As applied to motor vehicles, a forfeiture statute may
authorize the seizure of a vehicle where there is probable cause to
believe it is being used, has been used, is intended for use, or was
acquired in violation of a statute that permits forfeiture. Agents,
for example, may seize an automobile being used in an illegal gambling
business under Title 18, USC, Section 195$ d!. Where possible,
authority of the U.S. Attorney should be obtained prior to any such
seizure. Moreover, absent exigent circumstances, a search warrant
should be obtained before seizure when such an action is planned or
anticipated. A vehicle lawfully seized pursuant to a forfeiture
statute may be searched under the warrant authorizing seizure. A
receipt should be given for the vehicle seized, and custody turned
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Hanl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
over to the U.S. Marshal as soon as practicable see Section
5-2.2.16!.
**E££Dte: 07/26/1999 HCRT#: 915 Div: D9 Cav:
All articles legally seized as evidence should be
identifying mark on each.
identifying numbers, such as found on guns or lottery tickets,
original notes preserved.
**EffDte: 07/26/1999 ncnT#= 915 Div: 09 Cav:
5-9.1 Ioved to 5-10.1|
**EffDte: O7/26/1999
5-9.2 |Hoved to
**EffDte: 07/26/1999
5-9.3 |Moved to
**Ef£Dte: 07/26/1999
|s-10|MCRT#: 915 Div:
510.2|
MCRT#: 915 Div:
5-10.3]
MCRT#: 91$ Div:D9 Cav:
D9 Cav:
D9 Cav:
SEARCHES BY u.s. customs SERVICE | Formerly 5-9!]
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav:SecCls:
|59[ MARKING EVIDENCE FOR IDENTIFICATION | Former1y 5-8!]
carefully marked for identification. These markings should be of such
a character as not to LHJUIO the evidence itself. They should be made
in such a manner as to preclude the possibility of the marks being
obliterated. Their character should be such as to make_it possible
for the person or persons who obtained the evidence to testify at a
later date that this particular article was found at a certain place
at a certain time. Each mark should be distinctive; therefore, an "x"
should never be used. Evidence obtained and placed in containers or
cellophane envelopes should be appropriately identified. Detailed
notes should be made describing the articles found, the place they
were found, the date found, and the person who found them and the
The original notes should be preserved in
the investigative file of the case for use by the Agent when he/she is
called upon to testify at the trial. If any of the evidence contains
these
numbers should be recorded by the Agent finding the article and the
SecCls:
SecCls:
SecCls:
SecCls:
SecCls:
|S-10.1] Authority of Customs Officers | Formerly 5-9.l!| |
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Hanl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
Officers of the Customs Service have the right by statute
to search without warrant and without placing under arrest aliens or
citizens entering the United States. Should a Customs Officer
lawfully conducting an investigation for customs purposes request the
assistance or presence of an Agent, the presence of such Agent
ind hi!/hor participation in questioning the individual being searched
will not invalidate an otherwise lawful search or seizure. See
Bureau Bulletin #9 dated March 3, 1950.!
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
I5-1O.2| Diplomatic Personnel | Former1y 5-9.2!|
The policy of the FBI with reference to diplomatic or
similar official personnel of foreign governments is that Agents will
not request or conduct an examination or search of their baggage or
other material under their control without first obtaining the
permission of the State Department. Such permission may be requested
when information is received that an individual assigned to the
diplomatic staff of a foreign government is carrying material of
importance to the national security of the United States.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
I5-10.3] Non-Diplomatic Personnel | Formerly 5-9.3!|
The local office of the U.S. Customs Service should be
requested to make the search of material of importance to the national
security of the United States in the possession of persons who do not
have any official status when Agents have a reasonable belief
something of value will be ascertained. Agents may be present at such
an examination in the capacity of observers only.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
|511| n11=|.orwr1c IMMUNITY | Foi-mei-1y 510!|
Agents may not enter the office or dwelling of diplomaticrepresentatives of foreign governments for the purpose of making a
search or seizure see Section 3-12, Diplomatic Immunity!.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-11.1 [Moved to 5-12.1] I
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Manl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
**EffDte:
5-11.2 [Moved to s12.z|
**EffDte:
5-11.3 |Moved to s-1z.s|
**EffDte:
|s-12|
**EffDte:
|s-12.1|
Specifically, the law makes it unlawful
criminal offense to search for or seize
! Work product materials
broadcaster with intent to disseminate.
information is recorded, possessed by a
purpose to publish through a newspaper,
form of public communication. Examples
videotapes, motion picture films, photo07/26/1999 HCRT#: 915 Div: D9 Cav:
07/26/1999 HCRT#: 915 Div: D9 Cav:SecCls:
SecCls:
07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
FIRST AMENDMENT PRIVACY PROTECTION | Formerly 5-11!|
07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
Limitations on Search Authority | Formerly 5-11.1!]
The Privacy Protection Act of 1980 restricts the authority
of FBI Agents to search for and seize evidence in possession of the
written and electronic news media. In addition, because of its broad
language, the statute affords protection not only to the institutional
press newspapers, magazines, radio, and television!, but to others,
such as academicians, authors, film makers, and photographers.
for Agents investigating a
work product or documentary
materials possessed by a person in connection with, or with a purpose
of, disseminating a public communication in or affecting interstate or
foreign commerce. The clear intent of Congress is to require the
government generally to proceed by subpoena to obtain such materials.
are those prepared, created,
or possessed by a person reasonably believed to have a purpose to
disseminate such materials to the public through newspapers,
broadcasts, or other public communications. They include opinions,
theories, conclusions, and mental impressions. Examples are research
notes, drafts, or scripts prepared or possessed by a news reporter or
! Documentary materials are those upon which
person in connection with a
book, broadcast, or similar
are printed materials,
negatives, and magnetically or
electronically recorded cards, tapes, or discs.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
|512.2| Exceptions | Formerly 5-11.2!] I
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mans sm - -mmlnlw .| . -. M] ..-. . ..-u-.-....s.._....
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Manl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
The Act does not prohibit the search for or seizure of
either work product materials or documentary materials if there is
probable cause to believe the possessor thereof has committed or is
committing a crime to which the materials relate exclusive of a
possessory offense!. Nor does the Act bar the seizure of either
category of materials where there is a reasonable belief that seizure
is necessary to prevent death or serious bodily injury.
In addition to the foregoing, documentary materials only
may be seized if:
! issuance of a subpoena would cause destruction or
concealment of the materials; or
! the possessor has failed to comply with a court order
to produce the materials, and delay caused by further legal
proceedings would threaten the interests of justice.
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
|5-12.3] Remedies | Formerly 5-ll.3!| |
No criminal sanction attaches for violation of the Act.
Nor will evidence seized in violation of the Act be excluded in a
criminal proceeding. However, a civil cause of action against the
United States, providing for liquidated damages, has been created.
While Agents cannot be sued individually under the Act, the Attorney
General is directed to: ! cause an administrative inquiry to be
held where a violation of the law has occurred: and ! impose
administrative sanctions against the individual Agent, if warranted.
**Ef£Dte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
5-12.4 [Moved to 513.4| |
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
5-12.5 |Hoved to s-13.5] I
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
s-12.6 Ihoved to s-13.6} l
**E££Dte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
|5-13| SEARCH FOR nocunanrs IN POSSESSION or THIRD PARTIES |
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"TIHTT"T "' ITWWWIWITIWWTM "WWTW I MUITIIWMWITMNIWMWTH
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Man1*ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
| Formerly 5-12!]
**EffDte: 07/26/1999 hCRT#: 915 Div: D9 Cav: SecC1a:
|5-13.1| Attorney General Guidelines | Formerly 5-12.1!]
The Attorney General has issued guidelines, pursuant to
Title II, Privacy Protection Act of 1980, which control the method
used by Agents in obtaining documentary materials possessed by
disinterested third parties. The purpose of the guidelines is to
assure that federal officers do not use their search and seizure
authority to obtain such evidence unless reliance on a less intrusive
alternative means e.g., subpoena, summons, request! would jeopardize
the availability or usefulness of the materials. The guidelines are
reproduced in full in MIOG, Part 2, Section 28.
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
I5-13.2] Definitions | Formerly 5-12.2!|
! Disinterested third parties, for purposes of the
guidelines, are persons or organizations not reasonably believed to be
either suspects in a crime to which the documents relate or
individuals related by blood or marriage to such suspects.
! Documentary materials are those on which information
is recorded and include, in addition to written or printed matter,
such things as photos, films, audio or visual tapes, and materials on
which information is electronically or magnetically recorded.
Documentary materials do not include items which are contraband,
fruits and instrumentalities of crime. Therefore, evidence such as
demand notes in bank robberies, negotiable securities stolen and
transported interstate, and fraudulent applications for federal loans
or grants, may be reached by search warrant without offending the
guidelines.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
|513.3| Exemptions | Formerly 5l2.3!|
Exempted from the guidelines are the following:
! Audits, inspections, etc., undertaken pursuant to
federal statute or contract;
! Foreign counterintelligence operations under
authority of applicable federal law;
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Manl-ID: LHBSAPILEGAL-HANDBOOK FOR SPECIAL AGENTS PART l
!
!Border searches;
Consent searches;
! Obtaining abandoned materials or thoseof persons unknown who cannot be served with a subpoena
with a request.
**EffDte: O7/26/1999 HCRT#: 915 Div: D9 Cav;
ls-1s.492 Procedures See MAOP, Part 2, 2-4.4.5 and 2
| Formerly 5-l2.h!|
! While search warrants are discouraged,permit their use where less intrusive means of securingdocumentary materials are not available, due to such fapossible destruction of the evidence or a detrimental dinvestigation. In those situations, a warrant may be uapplication for the warrant is approved by an attorneygovernment i.e., U.S. Attorney, Assistant U.S. AttorneDepartment of Justice supervisory officials!. In an emit is not possible to contact one of these individuals,his/her absence the ASAC, may authorize application forso long as the U.S. Attorney or Departmental official!the authorization and the justification therefor within
! A search warrant should not be used wh
materials sought are in the possession of a disinterestphysician, lawyer, or clergyman, and the materials contconfidential information on patients, clients, or parisdeveloped in connection with treatment or counseling, omaterials are likely to be reviewed while executing thewarrant is permitted, however, under the following cond
a! Use of a less intrusive means wou
the availability or usefulness of the materials sought;
b! Access to the materials appears t
substantial importance to the investigation; and
c! The application for the warrant i
by the U.S. Attorney or appropriate Department of Justand authorized by a Deputy Assistant Attorney General.for this authorization should be made in writing and shthe application for the warrant, as well as a brief des
facts and circumstances supporting the use of the searcprocedure. In an emergency, the authorization may be o
the U.S. Attorney or appropriate Departmental officialthe Deputy Assistant Attorney General is notified of th
and justification within 72 hours.
SENSITIVEin possession
or presented
SecCls:
-4.4.17.!
the guidelines
the
tors as
lay in an
ed if the
or the
, certain
rgency, where
the SAC, or in
the warrant,
is notified of
24 hours.
re the
d third party
in
ioners
such
warrant. A
itions:
id jeopardize
o be of
s recommended
ice official!
The request
uld include
ription of the
warrant
tained from
, so long as
authorization
Printed: O8/20/2003 06:43:34Page 32
WMIHIW it !
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Hanl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART1
**EEfDte: 07/26/1999 HCRT#: 915 Div: D9 o Cav:
925-13.51 Choice of Warrant or Less Intrusive Means 92
s-12.s>|SecCls:
Formerly
In choosing whether to use the search warrant process or
alternative less intrusive means, such as subpoenas or s
obtain documents, Agents should consider:
! Whether use of the alternative means wi
advance notice of the governments interest, with the relikelihood of destruction, alteration, or concealment of
sought;
! Whether the government has an immediate
obtain the documentary materials.
**EffDIO2 07/Z6/1999 HCRT#: 915 D1V: D9 CSVZ
I5-l3.692 Sanctions l Formerly 5-12.6!|
Violation of the guidelines requires approprdisciplinary action by the Agency in which the violatorExclusion of evidence as a remedy for failure to comply
guidelines is expressly prohibited.
**Ef£Dte: 07/26/1999 HCRT#: 915 Div: D9 Cav:
SEN5ITIVEummonses, to
tl giveulting
the documents
need to
SecCls:
iate
is employed.
with the
SecCls:
Printed: 08/20/2003 06:43:34Page 33
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Han1'ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART1
SECTION 6. EYEHITNESS IDENTIFICATION
**EffDte: 04/28/1978 MCRT#: 0 Div: D9 Cav:
6-1 IN GENERALSecCls:
92The use of an eyewitness identification teczriqueimplicates a variety of constitutional as well as polic
purposes: to assure the admissibility and credibilityf eyewitness considerations. The guidelines which follow have two iaortant
identification testimony and to make certain that all i
are the roduct of the honest, independent recollectionwitness.I -
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav:
I6-1.1 Initial Description
The initial description of the subject obtain
witness should be as detailed as possible. Informationshould include as many details as possible regarding thcharacteristics and clothing of the suspect. This initdescription is an essential part of any subsequent line
**EffDte: 01/30/1997 HCRT#: 583 Div: D9 Cav:
6-2 LINEUPS
**EffDte: 10/27/1978 HCRT#: 0 Div: D9 Cav:
6-2.1 When Conducted
A lineup should be held only when clearly na case is one in which identification by a witness is afactor, and the witness is so unfamiliar with the accusidentification is uncertain. Other significant factorsconsidered by the Agent in making a determination of wh
conduct a lineup are the following:
! Other Evidence - If the government possignificant amount of other evidence, such as an admisscodefendant, a confession, or physical evidence, eyewitidentification may be unnecessary and consideration shoforegoing a lineup. This is especially true when the e
recollection is weak.
SENSITIVEentifications
of the
SecCls:
d from the
obtained
physical
al3
up-92
SecC1s:
SecCls:
ecessary. Such
critical
ed that
which may b
ther to
E55? 1
sld be given to
ewitness'
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.-wWI"mFT?.-lf .wTmWW WT]MmT_
SENSITIVEHanl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART I
appearance is uncommon or unusual, and difficulty is ex riencedlocating suitable elimination participants, consideratio should be
given to not holding a lineup.! Unusual Appearance of Suspect - If the uspect'sP
! Prior Knowledge - If the witness is acgrainted withthe suspect and recognized him/her during the offense, lineup may be
unnecessary.
! Inconvenience - If the suspect is in custody a great
distance from the witness, a lineup may not be feasible.Consideration should be given to using photographic identification
procedures.
! Uncooperative Suspect - It may be unwise to hold a
lineup if the defendant threatens disruptive tactics. See 62.l0,
Refusal to Participate.!
! Consultation with92Chief Division Counsellor U.S. |Attorney - If there is any uncertainty about the necess'ty or wisdomof conducting a lineup, the Agent should seek the advic: of the[Chief Division Counsel|or USA. The decision to hold a lineup often Ican be made while reviewing the proof with the USA when seeking
authorization for a warrant.
**EffDte: 01/30/1997 HCRT#: 583 Div: D9 Cav: SecCls:
6-2.2 Notice to U.S. Attorney, Defense Counsel, and Chief
Division Counsel92
Once a lineup has been scheduled, the Agent shouldimmediately advise the USA and defense counsel of the f ct, time andplace. The[Chief Division Counsel92should be notified ald, if |
possible, attend the lineup.
**EffDte: 01/30/1997 HCRT#: 583 Div: D9 Cav: SecCls:
62.3 Defense Objections to Proposed Lineups
If defense counsel raises objections or in tny othermanner obstructs the proposed 1ineup,92defense counsel]: ould be |
advised to discuss the matter with the USA.
**EffDte: 10/27/1978 MCRT#: 0 Div: D9 Cav: SecCls:
6-2.4 Right to Counsel See 62.4.2 !.!
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The legal right to the presence of a lawyer
exists only if the lineup takes place after an initial a
before a magistrate or the initiation of formal prosecutfiling of either an information or the return of an indithe lineup is connected with the offense for which the s
an initial appearance or was charged.
**E£fDte: 10/O9/2001 HCRT#: 1159 Div: D9 Cav:
6-2.4.1 Lineups Prior to Arrest or Initiation of Pr
beforelinitial appearancelor initiation of prosecution,compelled to appear pursuant to a court order or grand J See 6-2.11, Detention of Suspects for Lineups!, he/sheinformed that he/she may retain counsel for the lineup 'wishes, but that he/she has no legal right to counsel aabe appointed to represent him/her. The suspect shall bsufficiently in advance of the lineup to enable him/herserqices of an attorney at his/her own expense. If theto retain counsel, it is not necessary to obtain a waivForm FD-404, Your Rights at a Lineup. The lineup may b
the presence of a defense attorney.o
If a suspect voluntarily appears in a lineup
'u
**EffDte: 01/30/1997 MCRT#: 583 niv= D9 Cav:
6-2.4.2 Lineups After Arrest or Initiation of Prosect a lineup
pearance
on by the
tment, and
uspect made
SecCls:
secution
or is
ry subpoena
shall be
£ he/she
d one will not
so informed
to secure the
suspect fails
r or execute
held without
SecCls:
ution
! Unrelated Offenses - Even after the in
criminal charges, a suspect does not have the right tolineup relating to other criminal offenses which have nformally charged to the suspect. For example, if a sus
arrested and charged with Theft from Interstate Shipmen
legal right to be represented by counsel at a lineup hetiation of
ounsel at a
t been
ect is
, and
d forsubsequently is developed as a bank robbery suspect, he would have no
witnesses of the bank robbery. This rule applies wheth
is in custody or on bond.
If such a lineup is contemplated, the suspect should ber the suspect
informed well
in advance of the lineup that he has no legal right to En attorney atm. ththe lineup and one will not be appointed to represent hsuspect is already represented by retained or appointsIf e
counsel, ordesires to hire an attorney, he should be permitted todho so and havethe attorney at the lineup to represent him. If the suspect fails or
declines to retain counsel, the lineup may proceed without thepresence of a lawyer for the suspect. In that event, itunnecessary to obtain a waiver or execute Form FD-404.
! Same Offense - A suspect has the righh
SENSITIVEis
See 62.h.!
to a lawyer
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for any lineup in connection with the offense for whichhe has been
arrested or charged. If he cannot afford one, he has th right tohave one appointed. No lineup shall be held under thissuspect is not represented by counsel or refuses to exec
of counsel pursuant to Section 6-2.5.
**EffDte: 10/28/1978 HCRT#: 0 Div: D9 Cav:
62.5 Waiver of Counsel See 6-2.4.2 !.!ection if the
ute a waiver
SecCls:
l! Lineups After Arrest or Charges If the defendant
has no counsel at the time of the lineup, or his counselhas notappeared, the defendant should be asked if he is willing to appear inthe lineup without the benefit of counsel. If he is willing, heshould be requested to waiver counsel by signing Form FD-404.
! Execution of Form FD-404 * All blanksshould be completed to show the place of the lineup cidate, and time the form was furnished to the suspect.be signed by the suspect and two witnesses preferably
and the time noted.
appear without counsel but will not sign the form, hisn Form FD-404
y, state!,
e form should
pecial Agents!
ords should be ! Refusal to Sign Form If the suspect %s willing to
written in the blank space below the "waiver and consenthe form. Witnesses should then sign the form, and the
! Voluntariness of Waiver - To be valid,nust be voluntary. Agents should not do or say anythinmake the waiver anything other than the product of the
choice.
**EffDte: 04/28/1978 hCRT#: 0 Div: D9 Cav:
6-2.6 Substitute Counsel
If the suspect is entitled to a lawyer butrepresented by counsel and refuses to waive counsel, thshould be asked to request the court to appoint counsel" paragraph on
lineup held.
the waiver
which would
uspect's free
SecCls:
ts notU.S. Attorney
for lineup
purposes. The lineup should not be conducted if the sutpect is notrepresented by counsel and refuses to execute the waive
**EffDte: 04/28/1978 MCRT#: 0 Div: D9 Cav:
6-2.7 Role of Defense Counsel
The proper function of a defense attorneyat
SENSITIVESecC1s:
a lineup is
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merely that of an observer. His presence is required to
intelligent cross-examination of the lineup witnesses la
and to detect anything that might affect the admissibili
testimony about the lineup.
l! Lawyer's Suggestions - The defense lawy
permitted to make suggestions concerning the procedure o
lineup. The Agent should attempt to incorporate any reasuggestion which promotes the fairness of the lineup. A
suggestions, whether or not adopted, should be noted by
supervising the lineup and included in his FD-302.
! Participation During Lineup - The attor
instructed not to converse with the lineup participants
during the lineup. Any attempts to disrupt the lineup sby the Agent on his FD-302. If the attorney for the defassure
er at trial,
y of
r should be
the proposed
onable
1
he Agent
ey should be
r witnesses
ould be noted
ndant
obstructs the identification, he may be excluded from the lineup room.
In the event a defense attorney is excluded, the U.S. At
be contacted before resuming the lineup.
! Presence at Moment of Identification
practicable, the witness should make the identificationlineup room when the suspects are still visible. Defengshould be present and immediately informed if an identi
made. He should not be allowed to communicate with the
this time, nor participate in the identification processattempt intorney should
If
the
e counsel
ication is
witness at
! Presence at Postlineup Interview of Ni
right to counsel does not extend to interviews with lin
after the conclusion of the lineup. The suspect: lawy
be excluded from the postlineup interviews of lineup wi
! Contact with Government Witnesses Afte
Lineup The lineup witness may be told that he may spe
defense attorney if he wishes, but that he is under noobligation to do so. The witness name and address sho:
revealed to the defense lawyer without the consent of t
**EffDte: 04/28/1978 MCRT#: 0 Div: D9 Cav:
6-2.8 Suggested Lineup Procedure
All FBI lineups should comply with the proc
discussed below. The primary objectives of these proceeliminate suggestiveness and make certain that nothing '
by the Agents to distinguish the suspect from other parthe lineup. This will assure accurate and reliable ideik with the
lness The
up witnesses
r thus should
nesses.
Completion of
egal
ld not be
e witness.
SecCls:
dures
ures are to
s done or said
icipants in
tifications.
! Number of Participants - At least six ! persons,
including the suspect, should be included.
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! Physical Similarity - All participants hould be ofthe same race and sex and be similar in physical description.
! Persons Known to Nitnesses - Persons known to the
witnesses should not be used as elimination participants
lineup.
! Position of Suspect The suspect shoul
positioned as to suggest identity. Prior to viewing byin the
B not be
itnesses, the
suspect should be allowed to change his position if either he or his
attorney requests a change.
! Conduct of Agents Agents participati in or "8
observing a lineup should not do or say anything to call the witness
attention to the suspect. Agents should not comment on
of an identification made by a lineup witness.
! Distinctive Clothing - The lineup suspe
compelled to wear distinctive clothing. All other parti
wear similar attire or don the suspect: clothing.
to speak for voice identification if all participants a
state the same words or phrases. None of the lineup pa
including the suspect, should be required to identify hi
individually when being viewed by the witnesses.! Voice Identification - The suspect maythe validity
ct may be
cipants must
be compelled
e required to
ticipants,
mself
8! Compelled Action - The suspect can be iompelled to
make certain gestures or assume particular poses. All
participants should be required to do likewise.ther lineup
9! Multiple Witnesses Multiple witnesse should viewthe lineup separately. If this is not feasible, care s%0uld be taken
to segregate the witnesses during the lineup so that th
of the reactions of the other witnesses.y are unaware
0! Identifications - The witness should b
an identification during the lineup, when the lineup pa
within view of the witness. Multiple witnesses should
identifications out of the presence of other witnesses.
of a positive identification, the witness should be ask
signed statement setting forth the reasons which persua
the identification.
ll! Photograph of Lineup r Frontal and pro
photographs of the lineup participants should be taken
in the case file for possible use as evidence in the e
fairness of the lineup is challenged.
l2! Record of Lineup - The Agent in chargis to prepare a complete memorandum FD-302! on how an;asked to make
ticipants are
ake
In the event
d to execute e
ed him to make
ile
nd preserved
nt the
of the lineup
where the
lineup was held. The memorandum should include the names and
. Any addresses, jail or otherwise, of all lineup participands
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,. ...., ....,..-n, AM 1| 92lI.| ImuI92llll,., Ll-allllllllll
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suggestions or Ob]OCt1Ol made by the defense attorney should be noted
in the FD-302. Other Agents assisting in the lineup shall prepare
FD-302's describing their roles in the lineup.
**EffDte: 04/28/1978 HCRT#: 0 Div: D9 Cav: SecCls:
6-2.9 Lineups Conducted by Local Authorities
It is recognized that in some instances local facilities
and personnel might have to be used to conduct a lineup.| In that
event, efforts should be taken to assure that the procedures used by
the local authorities substantially conform to the procedures outlined
above.
**EffDte: 04/28/1978 MCRT#: 0 Div: D9 Cav: . Seocleg
6-2.10 Refusal to Participate
An in-custody suspect has no right to refuseito
participate in a lineup. If a suspect refuses to participate or
refuses to perform required acts in the lineup utter certain Swords,
perform certain acts!, he should be informed that he has!no tight to
refuse. The defendant may be informed that evidence of his refusal
might be used against him at his trial. If the suspect bontinues to
refuse, consideration should be given to obtaining a coukt order to
compel participation, or employing photographic identifipation
procedures.
a**E£fDte: 04/28/1978 MCRT#: 0 Div: D9 Cav: SecCls:
6~2.l1 Detention of Suspects for Lineups See 6-2.0.1.!
When probable cause for arrest is not present, or when an
arrest is not desirable, two possibilities are available to compel the
suspect to appear in a lineup:
! Court Order - Upon approval of the U.S. Attorney, an
affidavit may be filed with the U.S. Magistrate or U.S.|District judgeseeking an order compelling the suspect to appear at a gesignated
place and time for a lineup. The affidavit should cont in facts
establishing grounds to believe that a Federal offense as beencommitted, that there is reason to suspect that the perion named or
described in the affidavit committed the offense, and the results of
the lineup will be of material aid in determining whether the person
named in the affidavit comitted the offense.
! Grand Jury Subpoena - The U.S. Attorney may be
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requested to ask the Federal grand jury for s subpoena directing the
suspect to appear in a lineup at a designated time and place.
**EffDte: 04/28/1978 MCRT#: 0 Div: D9 Cav: SecC1s:
6 3 SINGLE SUSPECT CONFRONTATIONS
**EffDte: 05/30/1991 MCRT#: 0 Div: D9 Cav: SecC1s:
6-3.1 When Permissible
If a suspect is arrested or placed in temporary detention
shortly after the commission of an offense, in the general area of the
offense, suspect may be confronted singly by witnesses for
identification purposes. The phrase "shortly after the commission of
an offense," as used in this section, is to be considered two hours
unless special circumstances of an individual case warrant an
extension, or local practice or court rules require a reduction. In
arrest situations, preference should be given to foregoihg the single
suspect confrontation in favor of a formal lineup. However, if
staging a lineup will cause a substantial delay in the identification
attempt and thus reduce the reliability of the identification, or is
impracticable under the circumstances, the Agents should proceed with
the single suspect confrontation.
**E£fDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls:
6~3.2 Confrontation Procedure
Because single suspect confrontations are inherently
suggestive, Agents should take all reasonable steps to assure that
confrontations between suspects and eyewitnesses are acqomplished as
fairly as possible, with a minimum of suggestiveness. Some procedures
which may reduce suggestiveness are outlined below. It is recognized
that the circumstances surrounding single suspect confrontations will
vary. Therefore these procedures are not mandatory, but are offered
merely for guidance.
! Circumstances of Viewing - Agents may be able to
arrange the circumstances of the viewing to reduce suggestiveness.
For example, the suspect may be positioned with severa1;Agents, or
exchange articles of clothing with the Agents or others.
! Informing Witness-of Status of Investigation Agents
should avoid telling witnesses about the status of the investigation
or the details of the apprehension of the suspect. For example,
Agents should not inform the witness of the fact that the suspect was
stopped in a stolen car, or that he/she possessed a weapon or fruits
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of the crime, or that he/she admitted his/her participation in the
offense. The witness merely should be informed that a person who fitsthe description of the suspect has been detained for investigation.
! Questioning Witnesses Agents should phrase
questions of witnesses so as to avoid suggesting that the person
stopped has been arrested or is the perpetrator of the crime. For
example, "Is this the person?" is preferable to "This is the person,
isn't it?"
! Commenting on Validity of Identification " Agents
should not comment on the validity of an identification made by a
witness during a single suspect confrontation.
**E£fDte: 05/30/1991 HCRT#: 0 Div: D9 Cav: SecC1s:
6-3.3 Place of Confrontation
l! After Arrest - If a suspect found in the general
vicinity of a crime shortly after its commission is arrested, the
confrontation may take place either at the place of arrest, the scene
of the crime, or any other appropriate place. The consent of the
suspect shall not be required to remove him/her from the arrest site
to another location for viewing.
! During Temporary Detention - If a person found in the
general vicinity of a crime shortly after its commission is placed in
temporary detention, the confrontation should take place at the
location of the stop. This will require transporting the witnesses to
the scene of the detention. Unless special circumstances exist, or
the suspect voluntarily consents, the suspect should not be
transported to the scene of the crime or to another location for
viewing.
**EffDte: 05/30/1991 HCRT#: 0 Div: D9 Cav: SecCls:
6-3.4 Multiple Witnesses
If there are several witnesses to the crime, consideration
should be given to having only one or two confront the suspect. If
the suspect is taken into custody, a lineup may be arranged for the
witnesses who did not view the suspect in the confrontation.
**EffDte: 05/30/1991 MCRT#: O Div: D9 Cav: SecCls:
6-3.5 Right to Counsel
A suspect who appears in a single suspect confrontation
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has no right to be represented by counsel at the confrontation. It is
unnecessary for any suspect to execute Form FD-404, Your Rights at a
Lineup, prior to appearance in the confrontation.
**EffDte: 05/30/1991 MCRT#: 0 Div: D9 Cav: SecC1s:
6-4 PHOTOGRAPHIC IDENTIFICATION See 21106, Part I,
91-8 8!.!
**Ef£Dte: 05/30/1991 MCRT#: 0 Div: D9 Cav: SecCls:
6-4.1 When Conducted | See LHBSA, Part 1, 6-4.6.!| I
! Prior to Arrest - Photographic identification
techniques are permissible prior to arrest, when the perpetrator of
the crime is not in custody, and his/her identity is unknown or he/she
cannot be located.
! |After an Arrest - Photographic identification
techniques may be used, however, Agents should consider whether a
lineup is reasonably practicable as the lineup technique is regarded
as the most reliable of the eyewitness identification procedures.|
**Ef£Dte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
6-4.2 Suggested Photographic Identification Procedures Seels-4.6 and|HIOG, rm 2, 7-8.! I
The display of photographs should not be impermissibly
suggestive. Therefore, except where wholly impracticable, the
following procedures should be utilized:
! Number of Photographs - The suspect: photo should be
in a group of at least five other photos. Investigators may wish to
utilize Form FD747, Photo Spread Folder, to display the photographs.
! Similarity of Photographs - There should be a
reasonable attempt to use photographs of other persons who resemble
the suspect. The photo print itself should not be dissimilar to other
prints.
! Multiple Displays ~ Photographic displays should not
be repeatedly shown to witnesses who have made identifications unless
in furtherance of a legitimate investigative purpose.
! Comments by Agents Agents should not indicate in
any manner which photograph is of the suspect. Agents should not
comment on the status of the investigation or on the validity of an
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identification.
! Multiple Witnesses ~ No witness should view the
photographs in circumstances which permit other witnesses to ascertain
his/her ability or inability to identify the suspect.
! Indications of Criminality - Agents should attempt to
locate and utilize photographs which do not show indications of
criminal misconduct by the individuals depicted in the photographs,
and where feasible, use photographs without number boards or other
indications of criminality. If mug shots are the only photographs
available, it is preferable that the number boards be covered or
masked over.
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecCls:
6-4.3 Retention of Photographs | See 6-4.6.!| I
All photographs shown to any witnesses for the purpose of
identifying the suspect, whether or not an identification was made,
should be specifically identified and remain under the control of the
field office or be otherwise recoverable, so that they will
producible, if necessary.
**EffDte: 07/26/1999 HCRT#: 915 Div: n9 Cav: SecCls:
6-4.4 Written Record of Photographic Identification
| See 6-4.e.!| I
A written record of photographic displays, for the purpose
of identifying a suspect, should be made and maintained in the case
file. Except where wholly impracticable, the record should include
the following:
! Record of Photographs - A record should be maintained
of all photographs shown to any witnesses for the purpose of
identifying a suspect. The record should be maintained whether or not
an identification was made.
! Identity of Persons Depicted - Identifying
information on persons represented in each photograph should be
maintained.
! Marks or Scratches - The purpose or absence of any
marks, scratches, folds, writings, or other notable physical
characteristics on the photographs should be recorded.
! Date, Time, and Location of Display - The date, time,
and location of each photographic display should be recorded.
SENSITIVE
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Maul-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
, ! Identity of Witness The name and address of the
witness to whom the photographs were displayed should be noted.
! Identity of Agent The name of the Agents who
observed or participated in the photo display should be recorded.
! Statements by Agents - Any statement made by an Agentto the witness in connection with the photographic display, and
pertaining to the identification, should be noted.
8! Details of Identification - If the witness makes a
positive identification, he/she should be asked to furnish a signed
statement furnishing the details of the identification.
**EffDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecC1s:
6-4.5 Right to Counsel
A suspect does not have the right to have|his/herllawyer I
present at a photographic display, whether the display is before or
after arrest.
**EffDte: 08/27/1982 MCRT#: 0 Div: D9 Cav: SecC1s:
6-4.6 Displaying Bank Robbery Surveillance Photographs
! Witnesses of Depicted Robbery - Bank Robbery
surveillance photographs may be shown singly to, or left with
witnesses of, the depicted robbery. Inasmuch as this practice is not
suggestive and does not give rise to a likelihood of
misidentification, Section 6-b.2 is inapplicable.
! Witnesses of Separate Robbery If robbery
surveillance photos are shown to witnesses of a robbery other than the
robbery depicted in the photograph, and an identification is being
sought, the guidelines set out in Sections 6-4.1, 6-4.2, 6-4.3, and
6-4.4 should be observed. with regard to Section 64.2 l!, the other
photographs in the spread should be surveillance photos taken during
other, unrelated robberies.
**E£fDte: 08/27/1982 HCR'l#: 0 Div: D9 Cav: SecCls:
6-4.7 Release of Photographs to the News Media
|!| FBI personnel should take no action to encourage or |assist the news media in photographing or televising a defendant or
accused person being held or transported in Federal custody.
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|!| Employees of the FBI should not make available to I
the media photographs of a defendant unless a law enforcement function
is served thereby. The release of a bank camera photo or a photograph
of a defendant who is a fugitive from the justice is considered a
proper law enforcement function and is permitted under this section.
**EffDte: 08/27/1982 MCRT#: 0 Div: D9 Cav: SecC1s:
6-4.8 Photographing Juveniles See 3-16.2 ! and MIOG,
Part II, Section 4-2.2.3.!
The Juvenile Delinquency Act states that no juvenile who
has been arrested shall be photographed unless it is determined|he/she|wi11 be tried as an adult, or the U.S. District judge consents I
to the photo being taken. This prohibition is applicable to FBI
Agents, the U.S. Marshal's office, and any local facility in which a
juvenile is incarcerated on Federal charges.
**EffDte: 08/27/1982 HCRT#: 0 Div: D9 Cav: SecCls:
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SECTION 7. CONFESSIONS AND INTERROGATIQNS
**EffDte: 04/28/1978 HCRT#: 0 Div: D9 Cav: SecC1s:
7-l IN GENERAL See M106, Part Z, Section 7.!
The most important limitations on the admissibility of an
accused's incriminating statements are the requirements that they be
voluntary; that they be obtained withoutlthe government resortin to ,outrageous behavior;|end that they be obtained without violatingftheaccused's right to remain silent or to have a lawyer present.| i
**E£fDte: 07/26/1999 ncRT#= 915 Div: no cav: SecCls:
7-2 VOLUNTARINESS
A conviction based on an involuntary statement, without
regard to its truth or falsity, is a denial of the accused's right to
due process of law. |A|coerced confession will undermine the I
legitimacy of a conviction.
**E£fDte: 07/26/1999 HCRT#: 915 Div: n9 Cav: SecCls:
7~2.1 Policy See M106, Part 2, 7-2.1.!
! It l5 the policy of the FBI that no attempt be made
to obtain a statement by force, threats, or promises. Whether an
accused or suspect will cooperate is left entirely to the individual.
|If after being advised of his/her rights, an in-custody suspect
indicates that he/she wishes to remain silent or that he/she wishes an
attorney, all interrogation must cease at that time. Agents are
reminded, however, that certain questions, such as standard booking
questions and public safety questions, do not amount to interrogation
for purposes of Miranda.| See LHBSA,|Part 1,17-4.!
! During an interview with a witness, suspect, or
subject, Agents should under no circumstances state or imply that
public sentiment or hostility exists toward such person. If, during
an interview with a witness, suspect, or subject, questions are raised
by such persons or if anything transpires which gives reasonable
grounds to believe that subsequently such questions or incident may be
used by someone in an effort to place an Agent or the FBI in an
unfavorable light, an electronic communication regarding such
questions or incident should be immediately prepared for the SAC. The
SAC is responsible for promptly advising FBIHQ and the USA of such
questions or incident and FBIHQ must be promptly informed of all
developments.
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**E£fDte: O7/26/1999 MCRT#: 915 Div: D9 Cav:
determination. Those factors include the following:
a! Notification of charges;
accused;
weapons, number of officers present;
e!
f!
!
h!
i!
J!
k!Privation: food, sleep,
Isolation, incommunicado
Duration of questioning;
Trickery, ruse, deception;
Advice of rights; and
merely illustrative. The presence of any one or more
mentioned above will not necessarily make a statement
**E£fDte: 07/26/1999 MCRT#: 915 Div: D9 Cav:
7-2.3 Ilioved to 7-z.2|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav:
7'3 WARNING OF RIGHTS
**EffDte: O4/28/1978 MCRT#: O Div: D9 Cav:
SENSITIVE7-2.2 |Factors Affecting Voluntariness Formerly 7-2.3!
! Courts use a "totality of circumstances" test when
determining the voluntariness of an accused's statement. Although it
is not possible to predict in every case whether a court will find,
under all the circumstances presented, that the statement was a
product of the accused's free will or a product of coercion, there are
predictable factors that a court will examine in making its
b! Age, intelligence, and experience of the
c! Physical condition of the accused;
d! Physical abuse, threats of abuse, use of
Threats and psychological pressure;
medication;
interrogation;
Promises of leniency or other inducements.
! It must be kept in mind that the above factors areSecCls:
of the factors
involuntary.|
SecCls:
SecCls:
SecCls:
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Mani-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
7-3.1 In General
|Prior to custodial interrogation, an accused is entitled
to be warned of the right to remain silent and the right to an
attorney at this critical stage of the criminal prosecution. Failureto warn renders the product of interrogation confession or admission!
lUb]OCt to exclusion. Moreover, the government bears the burden ofproving that the accused understood and voluntarily waived those
rights prior to custodial interrogation.|
**EffDte: 07/26/1999 HCRT#: 915 Div: D9 Cav: SecC1s:
7-3.2 Policy See 7-4.1 l1! b! and HIOG, Part 1,
173-3 !-!
! FBI policy requires that a person must be advised ofthe names and official identities of the interviewing Agents, the
nature of the inquiry, and must be warned of his/her rights as set
forth in Section 7-3.3 before such person is interviewed if the
person:
a! Has been arrested and is in federal or state
custody, or custody of a foreign government;
b! Is significantly restricted in his/her freedomof action to a degree normally associated with a formal arrest;
c! Whether in custody or not, has been previously
arrested or otherwise formally charged and prosecution is pending,when the subJect matter of the interview concerns thelpending
charge,|or alclosely related offense.| See|! and|!.!
! The above policy requires compliance where the
freedom of action of the person questioned is "significantly
restricted." This phrase is to be interpreted as meaning something
more that a brief, temporary investigative detention. It is intended
to apply in situations where no formal arrest has occurred, but the
person is restrained in the freedom of movement to the degree
associated with formal arrest. This circumstance can arise even in
the absence of a formal arrest when, judging the totality of
circumstances, a reasonable person in the position of the interviewee
would believe that custody exists. For example, detention at
gunpoint, use of restraining devices or movement of an interviewee
without consent are factors likely to create the reasonable perception
that custody has occurred, thus requiring the warning and waiver.
However, Agents can lessen the impact of these factors and dispel
doubt that might exist in the interviewee's mind regarding his or her
custodial status by telling the person that he/she is not under
arrest. See !.!
SENSITIVE
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Hanl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1
! The warnings and waiver are required where a personhas been previously charged with a c
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