EPO 12/13 Flashcards
What are the exceptions to the warrant requirement?
Remember all still need PC!
HENR/AP (search/seizure) [also HEN = existent circumstances]
“Hot pursuit” of fleeing felon
“Emergency” (Imminent loss of life, injury or destruction of property)
“Now or Never” (Imminent destruction/removal of evidence)
Readily mobile conveyance search
Arrest in public
Plain view seizure
Explain Details of Arrest in Public
Suspect would escape before an arrest warrant could be obtained
Level of suspicion = PC that federal crime committed
Suspect must be in a “public location” (place agent has lawful access)
Arrest authority 19 USC 1589 & 8 USC 1357
(Note: can’t use for a non-immigration misdemeanor, that requires a warrant)
Explain Details of “Plain View” Seizure
Agent must have:
lawful observation of an object
lawful access to the object
PC to seize the object
To lawfully observe and lawfully access may need another exception to enter REP (ie. Hot pursuit, now or never, emergency)
Explain Details of Readily Mobile Conveyance Search
PC that evidence or contraband is located inside the readily mobile conveyance
Can search anywhere within the conveyance that PC leads you to suspect that evidence or contraband is concealed
Explain Warrant exception “Hot Pursuit” of a fleeing felon
PC to arrest suspect, PC to believe the suspect entered REP, and pursuit is “hot” or continuous/nearly so
Agent may enter REP location and search anywhere the suspect could conceal himself
Explain the warrant exception “Now or Never” Search
Agent must have PC evidence is located in a REP location
and PC evidence would be moved or destroyed before a search warrant could be obtained
Scope: may enter REP protected area to seize evidence
(note: can’t intentionally creat the circumstances to support PC regarding imminent destruction)
Once you find things then you can seize them under plain view and people arrest in public
Explain the warrant exception “Emergency” search
May enter REP protected area if :
PC that a threat to life or significant property damage exists
and
PC that immediate action is required to preserve life/property
Scope: entry limited to resolve emergency, once emergency resolved you must withdraw and get search warrant for any crime discovered.
(Observations occurring during emergency search can lead to plain view seizure/arrest in public)
What are some exceptions to the PC requirement for a warrant-less search/seizure
Zero Suspicion (BPCIIVS)
Border Search Pilot Certification Inspection (PCI) Consent search Inventory search Immigration Checkpoint (some/mere or RS for secondary) Vessel Document Check Search incident to arrest
Reasonable Suspicion (FBISP)
Frisk (weapons only, armed & dangerous)
Border Search (partial body/destructive/extended border)
Investigative Detention (Terry Stop)
Search Incident to Arrest “non routine”
Protective sweep (hidden threats to agent)
Regulatory Seizures:
Border Search
Pilot Certification Inspection
Vessel Document Inspection
Immigration checkpoint (unique levels of suspicion for conduct)
Explain Search Incident to Arrest exception
Assumes a lawful arrest based upon PC
Following that arrest, with zero suspicion, the subject can be searched for weapons, evidence, or means of escape (also the vehicle within reach of the subject)
Scope:
Arrestee no suspicion for search but must have RS to perform a “strip search”
Arrestee’s immediate area including locked and unlocked containers = zero suspicion
Automobile = zero suspicion if arrestee unsecured with access but must have RS to search passenger compartment for evidence of the offense
Cell phone = NO
Explain Consent Search exception
Voluntary under the “totality of the circumstances” and given by someone with authority to consent (because it is voluntary it is also zero suspicion)
Scope:
Subject to any limits of request, consent that is given, and revoked consent
Explain Investigative Detention exception
Must have RS
“Terry Stop” or Roving Patrol Stop = brief detention to resolve RS of criminal activity
Scope: must be brief, least intrusive means, due diligence, and NO SEARCH unless independent justified (ie. Consent, border search, frisk, etc.)
Explain Frisk exception
RS that the person to be frisked is armed and dangerous
Scope: pat down of exterior clothing looking for a weapons, may search conveyance in area immediately adjacent to suspect, only weapon (any other seizure requires PC)
Explain Protective Sweep exception
RS of hidden threat when agent is lawfully present. May be hidden assailant or environment danger (ie. Hull breach or fuel leak)
Scope: search REP locations capable of concealing person and hazardous environment danger
Explain Inventory Search Exception
Requires item to be lawfully seized (ie. Property subject to forfeiture, evidence of a crime, and abandoned or disabled conveyances)
Zero suspicion required to search in order to protect the property owner’s interests and the Government from baseless claims for damage or loss
Scope: It must be non-investigative (ie. Not looking for evidence) and in accordance with agency criteria/checklist/policy (but evidence discovered lawfully [unintentionally] will be admissible)
Explain Immigration Checkpoint Exception
Strikes a balance between a person’s freedom and government’s need to detect aliens who are illegally present in the US (designed primarily for immigration determination)
Zero suspicion for stop at primary for immigration status determination
Some/Mere suspicion for “secondary” for deeper immigration status determination
RS required for “secondary” for investigating a potential non-immigration criminal violation
