EPO 6

Question 1

What are the different types of seizures and the level of suspicion required for each type of seizure to be lawful?

Answer 1

Temporary Seizure (Zero Suspicion)
Temporary Investigative Detention/Seizure aka Terry Stop (Reasonable Suspicion)
Permanent Seizure (Probable Cause)

Question 2

What is a Temporary Seizure?

Answer 2

• Zero suspicion required
• A seizure that is limited in scope and advances the underlying public interest

-Examples:
Border seizures (19 USC 1581)
Vessel document checks (19 USC 1581)
Pilot certification checks (FAR 61.3(l))
BP checkpoint primary stops (8 USC 1357(a)(3))

-If agent develops RS or PC of a crime or a violation then the encounter may escalate to an investigative detention or an arrest, otherwise the person must be released

Question 3

What is a Temporary Investigative Detention/Seizure aka Terry Stop?

Answer 3

• Requires RS
• NOT A SEARCH
• limited in scope to be brief to resolve your reasonable suspicion
• if no further suspicion must let person go, if develop PC then arrest

-Examples:
investigative detentions
Terry stops
Vehicle stops
Roving patrol stops

Question 4

What is a Permanent Seizure?

Answer 4

• Requires PC suspicion

- An arrest of a person or seizure of object for evidence at trial

Question 5

Define the different levels of suspicion.

Answer 5

Zero = zero suspicion
Some/Mere = hunch
Reasonable Suspicion (RS) = might be
Probable Cause (PC) = more likely than not (ie. >50%)
Reasonable Certainty (RC) = darn sure

Note: RS, PC, and RC require “articulable facts”

Question 6

What is an articulable fact?

Answer 6

Information that can be put into words.

Must be:
Objective (specific and observable that can be described)
Quality (how good the fact is to be reasonable for suspicion level)
In light of training/expertise (what you see beyond a lay person)
Totality of circumstances (all facts, not just isolated facts)

Question 7

What factors might determine if a seizure is really an illegal arrest?

Answer 7

Seizure exceeds lawful scope (more instructive than necessary)
Distance suspect was moved
Length of detention
Due diligence
Words, tone demeanor of agent
What the suspect was told?
Miranda
Use of force
Was suspect searched?

Question 8

What is an illegal arrest?

Answer 8

When an agent exceeds the type of seizure supported by the level of suspicion

(Ie. Agent makes a Terry stop with RS, resolves the suspicion without developing PC, but does not release the subject. That is now an illegal seizure because it has exceeded the permissible scope)