Handbook 9.4
Investigative Techniques
Chapter 12
Arrests
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Contents
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This chapter relates to arrests. This chapter will give special agents guidance
as to what to do before, during, and after an arrest is made. The following
will be discussed in this chapter:
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General Information
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Statutory Authority to Arrest
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Definition of Arrest
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Securing an Arrest Warrant
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Procedures Before Executing an Arrest Warrant
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Arrest in Forcible Rescue Investigations
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Arrest of Juveniles
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Arrest or Detention of Foreign Nationals
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Arrest Made in Wagering Investigations
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Procedures After an Arrest
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Interview of the Arrested Person
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Hearing Before a United States Magistrate
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Reporting the Arrest
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During most investigations, it will be advantageous to wait until the end
of the investigation to make an arrest. The Speedy Trial Act starts to run
at the time of an arrest. In view of the time limitations, arrests should
only be made in situations where the investigation would be in jeopardy if
an arrest was not made or when an approved arrest warrant has been issued.
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Special agents will not normally make arrests without warrants unless urgent
conditions exist, such as a physical attack on an Internal Revenue Service
(IRS) employee or forcible rescue of seized property in the presence of the
special agent. (See Text 12.3 and 12.7). The possession of an arrest warrant
lessens the likelihood of a charge of false arrest being filed against the
arresting agents, and increases the likelihood that the arrest will be sustained
in later court proceedings.
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Special agents may initiate a request to obtain and/or execute an arrest
warrant. The investigating agent will be responsible for recommending to
the Chief the merits of Criminal Investigation (CI) requesting the issuance
and execution of an arrest warrant. Upon the concurrence of the Chief, CI,
the U.S. Attorney will be notified of this request. In approving requests,
the Chief, CI, will consider the strict time provisions of the Speedy Trial
Act. In other circumstances, CI will execute an arrest warrant only upon
the specific request of the U.S. Attorney on an investigation-by-investigation
basis.
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Special agents have statutory authority to make an arrest with or without
an arrest warrant. Special agents also have non-statutory authority to make
an arrest.
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The statutory authority for special agents to make arrests is contained in
Internal Revenue Code (IRC) 7608, as amended. This section provides, in part,
that special agents are authorized:
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to execute and serve search warrants and arrest warrants, and serve subpoenas
and summonses issued under authority of the United States;
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to make arrests without warrant for any offense against the United States
relating to the Internal Revenue laws committed in his or her presence, or
for any felony cognizable under such laws if they have reasonable grounds
to believe that the person to be arrested has committed or is committing
any such felony; and
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to make seizures of property subject to forfeiture under the Internal Revenue
laws.
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An arrest without warrant is a serious matter and could subject the agents
making the arrest to civil liability for false imprisonment or false arrest.
Therefore, in order for special agents in their official capacity to be
privileged to make a warrantless arrest, it is necessary that a violation
constituting a felony be committed in their presence or the special agents
reasonably believe the person whom they arrested has committed a felony.
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The Supreme Court has stated that in the absence of a statute limiting federal
agents' power to arrest without a warrant, those agents have the same powers
of arrest as a private citizen. (Peace Officer Status.) (See text 9.2.3.7.2.)
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Special agents' power to make an arrest without a warrant as private citizens,
when valid under state law, is not made invalid because the crime is outside
the scope of the Internal Revenue laws.
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Special agents should use extreme caution in acting as arresting citizens
and should be familiar with the arrest laws of the locality where he or she
is acting.
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Arrest means to take custody of a person accused of a crime for the purpose
of holding or detaining him/her to answer a criminal charge.
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Three basic elements must be present before an arrest is complete.
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The agents must have the authority to make the arrest.
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The offender must know that an arrest is intended.
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The offender must submit to the authority of the agents.
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When making an arrest, special agents should announce their official identity
to the person to be arrested; should display their badges where circumstances
permit; should make known to the offender that he or she is being arrested;
should inform the offender of the reason for such action; and should take
control of the arrested person.
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After the offender submits to the authority of the arresting agents, further
resistance or attempt to escape constitutes another offense.
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While reasonable force may be employed to effect an arrest, the use of excessive
force by special agents may subject them to liability for tort damages. (See
text 9.2.3.9.1.) Special agents are prohibited from using extreme force in
making an arrest. Firearms may be used only in accordance with the guidelines
in text 9.2.3.6.
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Securing an arrest warrant is going to vary dependent upon these factors:
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Whether the case is a Title 26 violation requiring approval by Department
of Justice (DOJ).
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Whether approval for the Title 26 violation has occurred or is pending.
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Local United States Attorney's Office (USAO) policies and Assistant United
State Attorney's (AUSA) preferences regarding obtaining arrest warrants.
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If the special agent's case falls in the category of cases that require approval
and has not been approved for prosecution, DOJ must approve the arrest warrant.
All other cases, such as money laundering, are approved by the local USAO.
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Issuing warrants is a decision of the local USAO. Whether approval is required
or not, it is ultimately up to the assigned AUSA to determine whether warrants
will be issued.
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In situations where arrests are appropriate, most AUSAs will prefer to indict
the case and have bench warrants issued. This avoids many problems including
the early release of the governments evidence during preliminary hearings.
Such hearings inevitably result in the release of information which otherwise
would not have been disclosed until much later in the court procedure.
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After an indictment, there is no preliminary hearing or probable cause hearing
because the grand jury has already determined probable cause (Rule 41).
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The issuance of bench warrants may be discouraged by AUSAs. It is widely
believed that such warrants should only be used where there is a genuine
flight risk or reason to believe the defendant is a danger to the community.
There may be other reasons justifying arrest including planned simultaneous
searches which may counterbalance the reluctance of an AUSA to issue warrants.
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With the issuance of warrants, there is always a concern that the government
may appear to be overreaching; therefore, absent a strong basis, some prosecutors
may prefer to have the defendants appear upon issuance of a summons.
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[9.4] 12.6 (06-30-1998)
PROCEDURES BEFORE THE EXECUTION OF AN ARREST WARRANT
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Special agents in charge of the arrest should review and prepare the arrest
checklist (Exhibit 12-1) when planning this enforcement activity. The arrest
checklist must be kept in the investigation file.
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Special agents in charge of an arrest will be responsible for:
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Conducting pre-operation intelligence gathering.
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Preparing a site survey.
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Reviewing staffing.
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Reviewing the equipment needed.
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Reviewing communications.
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Conducting a pre-operational briefing.
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Special agents shall not use force to accomplish a recovery of the property
in forcible rescue investigations. However, special agents may make an immediate
arrest (arrest without a warrant) when the forcible rescue takes place in
their presence.
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Special agents should consider all options available before making the decision
to arrest, including:
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Advising the person attempting or making the rescue that he or she is about
to commit or is committing a crime.
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Considering the Service's likelihood of recovering the asset(s) being rescued
(i.e., currency or other readily disposable assets versus machinery, automobiles,
etc.).
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In many instances, withdrawal from the scene and applying for an arrest warrant
may be the best alternative, particularly in a potentially explosive situation.
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Regardless of the decision, if a forcible rescue occurs, the facts and
circumstances should be immediately reported to the Chief, CI. If an arrest
is not made, the Chief will discuss the case with District Counsel. If the
decision is made to obtain an arrest warrant, the request will be made to
the U.S. Attorney.
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Special agents should not become involved in pursuit driving in forcible
rescue investigations. Sufficient facts will normally exist for special agents
to subsequently obtain an arrest warrant without endangering the lives of
third parties or others by engaging in unnecessary pursuit driving.
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In the event a physical attack is made upon Service employees, special agents
may arrest the attacker using only such force as is reasonable and necessary
in accordance with the provisions of text 9.2.1.2.
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Generally, special agents will not have occasion to arrest a juvenile for
violation of an Internal Revenue law.
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For the purpose of this provision, and as defined in Title 18 USC 5031, a
juvenile is a person who has not attained his 18th birthday, or for the purpose
of proceedings and disposition for an alleged act of juvenile delinquency,
a person who has not attained his 21st birthday; and juvenile delinquency
is the violation of a law of the United States committed by a person prior
to his 18th birthday which would have been a crime if committed by an adult.
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If special agents are ordered or requested to serve an arrest warrant upon
a juvenile, or if it is deemed necessary to arrest a juvenile without a warrant,
the special agents must comply with the procedures as set out in Title 18
USC 5033, as follows:
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Whenever a juvenile is taken into custody for an alleged act of juvenile
delinquency, the arresting officer shall immediately advise such juvenile
of his legal rights, in language comprehensive to a juvenile, and shall
immediately notify the Attorney General and the juvenile's parents, guardian,
or custodian of such custody.
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The arresting officer shall also notify the parents, guardian, or custodian
of the rights of the juvenile and of the nature of the alleged offense.
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The juvenile shall be taken before a magistrate forthwith. In no event shall
the juvenile be detained for longer than a reasonable period of time before
being brought before a magistrate.
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When special agents arrest a juvenile, they should notify the office of the
United States Attorney in the judicial district in which proceedings will
be held. This will satisfy the statutory requirement for notification to
the Attorney General when a juvenile is arrested.
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A foreign national is defined as any person who is not a United States citizen.
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Treaty obligations of the United States require federal law enforcement officers
to notify certain foreign authorities when foreign nationals have been arrested
or detained in the United States.
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To ensure that Americans abroad obtain the treatment to which they are entitled,
it is essential that the United States not violate any of its obligations
under these treaties.
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When special agents arrest or otherwise detain a foreign national, the arresting
special agent must promptly inform the detainee of his or her right to have
his or her government informed of such event.
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If the detainee asks to exercise this right, the arresting special agents
must immediately inform the Chief, CI, Delaware-Maryland District, who will
notify the appropriate Embassy.
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A copy of Form 1327-A, Arrest Report, should also be sent to the Chief, CI,
Delaware-Maryland District.
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Foreign consular officers have the right to visit their nationals who are
in prison, custody, or detention to converse and correspond with them and
to arrange for their legal representation, unless the person being held expressly
opposes these actions.
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Some agreements with certain countries require mandatory notification when
their nationals are confined or detained. (See Exhibit 12-2.) In these instances,
the foreign national has no choice regarding notification and the Assistant
Commissioner (International) will notify the consulate or the embassy of
the situation without delay.
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A Provisional Arrest Request is the process the DOJ uses to extradite a fugitive
located in a foreign jurisdiction.
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If you have any questions regarding Provisional Arrest Requests, call the
CI INTERPOL Representative at (202) 616-9000.
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In situations where an arrest is made in a wagering occupational tax
investigation, the Chief, CI, will ensure that related investigations involving
any wagering excise tax investigations and those Title 18 violations delineated
in text 9.1.5 committed in contravention of the Internal Revenue laws are
promptly completed. All related violations can then be prosecuted concurrently,
in order to comply with the strict time provisions of the Speedy Trial Act
and to avoid dual prosecution problems. (See text 9.1.2.)
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When special agents make an arrest in a wagering occupational tax case, they
will prepare Form 1327A, Arrest Report, which will be furnished by the Chief
to the United States Attorney by the close of business on the next business
day following the arrest. Arrest reports will be processed in accordance
with text 9.4.16.15.
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After special agents have their subject in custody, they must follow certain
procedures to process the person arrested.
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Special agents who make an arrest are responsible for the safety and custody
of the prisoner. Special agents may detain the person arrested for a reasonable
time until they can conveniently and safely take him or her before a United
States magistrate.
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When the circumstances prevent an immediate hearing, the prisoner may be
taken to the nearest police station, U.S. Marshal's Office, or similar place
of detention (which should be one approved for custody of federal prisoners,
if feasible) to be held as a federal prisoner until arrangements can be completed
for the hearing.
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However, the prisoner shall not be detained longer than absolutely necessary
before being granted a hearing.
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Special agents must conduct a thorough search of the person arrested. They
should search for weapons, contraband, means of escape, and means and instruments
used in the commission of the crime.
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A reasonable attempt should be made to have an agent of the same sex as the
person arrested present to conduct the search of the body and clothing for
weapons and evidence. Professionalism, common sense, safety, and maintenance
of human dignity is paramount at all times.
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Special agents will not delay an arrested person's appearance before a United
States magistrate for the purpose of an extensive interview or attempting
to obtain a statement. However, if the statement can be obtained without
unnecessary delay and if the person arrested is willing to make a statement,
it should be recorded subject to the safeguards outlined in text 9.4.5.11.3.2.1.
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The procedures in 9.4.5.11.3.2.1 will also apply to interviews of the arrested
in the custody of local authorities.
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However, before interviewing such persons, special agents should ascertain
whether the local police gave an adequate constitutional warning prior to
questioning the arrested.
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If no warning was given by local police, or if their warning was incomplete,
a standard pre-interview warning by the special agents may not be sufficient
to assure the admissibility of statements made by the subject.
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In this situation, the agents may have to take additional precautions to
dispel from the subject's mind the impression that the interviews by local
police and by the agents are really a single, continuous period of questioning.
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This may be accomplished by measures such as:
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Allowing a reasonable amount of time to lapse between the police interview
and questioning by the special agents.
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Explaining to the subject the distinction between the agents' interest in
the investigation and the local police's interest in the investigation.
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Obtaining an affirmative waiver of rights reflecting the subject's understanding
of these distinctions.
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Regional Counsel should be consulted to resolve questions concerning the
adequacy of constitutional warnings given by local police and to assist agents
in selecting appropriate measures to counteract any apparent deficiencies.
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Whenever feasible to do so, special agents should obtain fingerprints and
photographs of the arrested person. If adequate equipment and skilled personnel
are available, the fingerprinting and photographing should be done by CI.
Otherwise, it may be done by an officer of any other law enforcement agency
having the necessary equipment
available.
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The prisoner will be photographed full face view and side view. In the full
face view, a card should be placed below face level, setting forth the office
where the photograph is taken, the date, and the prisoner's name. The following
information should be shown on the reverse side of the photographs.
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The name of person arrested
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Known aliases
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Current address
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Case number (if available)
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Social security number
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Date of birth
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Violations charged
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Weight
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Height
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Race
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Color of eyes
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Build
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Color of hair
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Complexion
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Scars and marks
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Nationality
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Passport number
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Two sets of fingerprint cards will be prepared for each arrested person on
Federal Bureau of Investigation (FBI) Form FD-249, Fingerprint Card. Each
district has been provided with preprinted fingerprint cards showing the
agency's name and the originating agency identifier (ORI) number.
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The photographs, described in (2) above, will be attached to one set of
fingerprint cards. This set will be retained in investigation files. The
second set of fingerprint cards will be mailed directly to the Identification
Division, Federal Bureau of Investigation, Washington, DC 20537-9700.
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Additional preprinted fingerprint cards showing the agency's name and ORI
number can be obtained from the FBI by completing FBI Form 1-178 (Rev. 5-18-78),
Requisition for Ordering Identification Supplies. Completed forms are to
be mailed to the Identification Division, FBI, Washington, D.C. 20537-9700.
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A special agent who makes an arrest, whether with or without a warrant, must
take the arrested person without unnecessary delay before the nearest available
United States magistrate or other nearby officer empowered to commit persons
charged with offenses against the laws of the United States. If the arrest
was without a warrant, a complaint must be filed. (See Rule 5, Federal Rules
of Criminal Procedure.)
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Special agents must immediately inform their Group Manager of any arrests
they made. The Group Manager will, in turn, immediately report such information
to the Chief.
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When it is necessary to make an arrest prior to consulting the United States
Attorney, he or she shall be notified promptly of the arrest, advised fully
of the facts in the investigation, and requested to represent the government
in the preliminary examination before the United States magistrate.
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In addition to the reporting procedures in (1) and (2) above, the special
agent will prepare a Form 1327-A (see Exhibit 12-3), before the close of
the next business day following the arrest. Upon approval by the Chief, the
following distribution will be made:
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Original to special agent
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One copy to District Public Affairs
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One copy to District Counsel
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One copy to the Chief, Delaware-Maryland District, if the person arrested
is a foreign national.
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If the arresting agents believe valid reasons exist for opposing release
of the prisoner on personal bond, these reasons should be brought to the
attention of the United States Attorney prior to the bail hearing. The U.S.
Attorney may request that the agent prepare Bail Reform Act Form No. 1, AO-201,
for use at the hearing. The form is available at the Clerk's Office for each
U.S. District Court. The original will be furnished to the U.S. Attorney
and a duplicate will be retained in the investigation file.
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Exhibit [9.4] 12-1 (06/30/98)
Arrest Checklist
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| ARREST CHECKLIST |
| 1. |
Pre-Operation Intelligence Gathering |
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Obtain personal and criminal histories of subject and associates
including name, age, sex, race, personal traits, addresses, distinct clothing,
etc. |
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_ b. |
Obtain photographs or composites of subjects and associates. |
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_ c. |
Obtain description and license numbers of all vehicles owned/used
by subject and associates. |
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_ d. |
Find out if subjects or associates are known to carry firearms,
or are prone to violence (hidden weapons, mental condition, etc.). |
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_ e. |
Determine if surveillance of subject, associates, or site
location is appropriate (may determine the time when warrant is executed). |
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Determine if there is other enforcement interest in subject
or associates which could affect the operation or provide intelligence. |
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Site Survey |
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_ a. |
If possible, photograph or diagram arrest site. Note areas
of approach and safe entry. |
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Look for any obstacles that would complicate approach and
entry (walls, fences, booby traps, dogs, alarms, etc.). |
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_ c. |
Note arrest site, hospitals, and trauma centers on street
map. |
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_ d. |
Determine if any special equipment is needed to gain entry,
control occupants, secure evidence, etc. |
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_ e. |
Test radio equipment at site for dead zone. |
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| 3. |
Staffing |
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_ a. |
Select trained and experienced agents for arrest/cover teams.
Consider those who previously worked and practiced together. Also consider
a superior number of agents vs. violators. Are any specific or unique skills
needed? |
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Consider assistance/support from local law enforcement. |
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Select command post personnel at base. |
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Equipment |
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Service weapon, ammunition, handcuffs, flex cuffs, body armor,
communication equipment, bullhorn, flashlights, first aid kit. |
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Communications |
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_ a. |
Advise base station of activity, time table, etc. |
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Establish number and type of radios to be used; channels,
codes, and call signs of each participant. |
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_ c. |
Obtain telephone number at arrest site. |
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_ d. |
Consider use of mobile cellular telephone, if available. |
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_ e. |
Get telephone numbers of hospital and trauma center. |
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Pre-Operational Briefing |
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Discuss overall mission (general plan to accomplish objectives). |
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Discuss how each team will accomplish their designated task.
Include back-up team if necessary. Review areas for cover and security to
approach location and make entry. |
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_ c. |
Distribute all photographs, maps, diagrams, list of personnel,
radio call signs, etc. |
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_ d. |
Insure all personnel involved meet face to face. |
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_ e. |
Discuss procedures for handling injured personnel, including
telephone number and address and route to hospital/trauma center. Designate
medical transport vehicle. |
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_ f. |
Discuss specific procedures for handling children. |
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_ g. |
Discuss all coordinating instructions: |
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1) |
Time schedule. |
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Departure. |
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b) |
Rendezvous. |
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c) |
Execution of warrant. |
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d) |
Specific tasks (separate phases of the operation such as sealing off
an area, positioning units, priorities on arrests, etc.). |
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e) |
Return (designated time to return for debriefing or to be released). |
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2) |
Order of movement (sequence by which units or individuals
will move to or from arrest site). |
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3) |
Routes to be followed and alternate routes. |
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4) |
Transportation and booking of arrestee. |
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5) |
Coordination with and identification of any other agencies,
Assistant U.S. attorney, magistrate, and holding facilities. |
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6) |
Caution areas (areas that might jeopardize the safety of
the individuals involved, for example, fogs, detection devices, booby traps,
etc.). |
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_ h. |
Insure all members of the operation understand and agree
to that no assignment is worth the loss of life or serious injury!
Be prepared to sacrifice operational success for the sake of safety. |
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Post-Operational Review |
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_ a. |
All personnel involved and management should discuss
specifically who, what, when, where, why, and how as they relate to
tactics plan and execution. Any problems encountered? Consider solution for
next time. |
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_ b. |
Prepare Form 1327A, Arrest Report; Form 1327, Report of Legal
Action; Form 4930, Criminal Investigation Case/Project Record; memos by
participants. |
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Exhibit [9.4] 12-2 (06/30/98)
Countries For Which Consular Notification is Mandatory
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| COUNTRIES FOR WHICH CONSULAR NOTIFICATION IS MANDATORY |
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| Albania *1 |
| Malta |
| Antigua |
| Mauritius |
| Armenia |
| Moldova |
| Azerbaijan |
| Mongolia |
| Bahamas |
| Nigeria |
| Barbados |
| Philippines |
| Belarus |
| Poland |
| Belize |
| Romania |
| Brunei |
| Russian Federation |
| Bulgaria |
| St. Kitts/Nevis |
| China (Peoples' Republic) *2, *3 |
| St. Lucia |
| Costa Rica |
| St. Vincent/Grenadines |
| Cyprus |
| Seychelles |
| Czech Republic |
| Sierra Leone |
| Dominica |
| Singapore |
| Fiji |
| Slovak Republic |
| The Gambia |
| South Korea |
| Georgia |
| Tajikistan |
| Ghana |
| Tanzania |
| Grenada |
| Tonga |
| Guyana |
| Trinidad/Tobago |
| Hungary |
| Turkmenistan |
| Jamaica |
| Tuvalu |
| Kazakhstan |
| Ukraine |
| Kiribati |
| United Kingdom *5 |
| Kuwait |
| U.S.S.R. *4 |
| Kyrgyzstan |
| Uzbekistan |
| Malaysia |
| Zambia |
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| Arrangements with these countries provide that U.S. authorities shall
notify responsible representative within 72 hours of the arrest or detention
of one of their nationals. *1 |
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| When Taiwan nationals (who carry Republic of China passports) are detained,
notification should be made to the nearest office of the Coordination Council
for North American Affairs, the unofficial entity representing Taiwan's interests
in the U.S. *2 |
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| As of July 01, 1997, Hong Kong became a Special Administrative Region
of the Peoples Republic of China. Accordingly, when citizens of Hong Kong
are detained, notification should be made to a responsible representative
of the Peoples Republic of China. *3 |
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| All U.S.S.R. successor states are covered by this agreement. They are:
Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan Kyrgyzstan, Moldova, Russian
Federation, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. *4 |
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| British dependencies are also covered by this agreement. They are: Anguilla,
British Virgin Islands, Bermuda, Montserrat, and the Turks and Caicos Islands.
Their residents carry British passports. *5 |
Exhibit [9.4]
12-3 (06/30/98)
Arrest Report |
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Internal Revenue Manual
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Hndbk. 9.4 Chap. 12 Arrests
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(06-30-1998)
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![Exhibit [9.4] 12-3 (06/30/98) Arrest Report](36215X01.GIF){kind=link}