Review Flashcards
What is 8 USC 1357(a)(2) [INA 287(a)(2)?
Without a warrant and in officers presence or view
Any alien who in officers presence or view is entering illegally or in US illegally and is like to escape
Cbp officers exercise significant law enforce authority to?
Detain people, conveyances, cargo
Search, people, conveyances, cargo)
Remove aliens
Seize property
Carry a firearm and use force
Arrest offenders
What is 8 USC 1357 (a)(4)
INA 287 (a)(4)
Without a warrant
Permits arrest if any person for an immigration related felony
8 USC 1357(a)(5)(a)
INA 287(a)(5)(a)
Without warrant and in officers presence
For federal crime
19 USC 1589a?
Permits arrest without warrant, for any federal offense, felony or misdemeanor, that occurs in the officers present and for federal Felonise that occur outside the officers presence
Federal misdemeanors that occur outside the officers presents require a warrant. The officer must be performing lawful duties and probable cause is required
In order what are the levels of suspicion?
Lowest to highest
- Zero suspicion
- some or mere
- reasonable suspicion
- probable cause
- reasonable certainty
- proof beyond a reasonable thought
Types of articulable facts?
Objective Quality Considered in totality Inlight of officers experience Known in advance
What does the 4 the amendment protect citizens from?
Unreasonable search and seizures
When law enforcement conduct is challenged in court, who makes the decision to see if officers level of suspicion was reasonable?
The judge
What is the exclusionary rule?
Evidence suppression
Government may not use
Unlawful evidence against a criminal
What is the purpose of the exclusionary rule?
To deter police misconduct, specifically to discourage officers from violating the constitution
How can defendant claim evidence against them was obtained unconstitutional?
Motion to suppress
What is fruit of the poisonous tree?
Any evidence discovered after unconstitutional conduct
What can happen to a CBP officer if obtaining unlawful evidence?
Employment discipline
Civil liability lawsuit
Criminal prosecution
What is a seizure of property?
Any government interference with possessory right of interest
What is seizure of a person?
Government interference with a persons right of movement
Is a consensual encounter a seizure?
No, person must agree to talk or answer questions from officer
What is the scope?
Length of time type of action when performing seizure
What is an example of a Zero suspicion seizure for CBPO’s
Routine border detention
Resolution is refer or release
What level of suspicion does a CBPO need to refer someone to secondary?
Zero suspicion
What level of suspicion does a CBPO meed to perform an investigative technique?
Reasonable suspicion
What level of suspicion does a CBPO need for an arrest?
Probable cause
What is case study Tennessee vs Garner?
Prohibits using deadly force on a fleeing felon in absence of deadly threat
What is case study Graham vs Connor?
The use of force in all cases, must be reasonable and necessary
Use of force by government officer constitutes seizure if?
Officer physically applies any force
Suspect yields to officers show of force
What two things are needed to make officers use of force reasonable?
Necessary and reasonable
What is less lethal force?
Force not likely to cause serious physical injury or death
Does use of less lethal force have to be reasonable and necessary?
Yes
What is deadly force?
Likely to cause death or serious physical injury
What are the three factors to determine imminent threat?
Opportunity
Ability
Intent
What must an officer do if they use deadly force on imminent threat?
Officer must be able to articulate a reasonable belief that suspect weapon can cause bodily harm or death
Can CBP officers use deadly force on fleeing felons?
No if it is solely to prevent escape
And
Yes, if subject has inflicted or threatens to inflict serious physical bodily harm to to officer or others
Can CBP officer shoot to disable a conveyance?
No,
Only air and marine
Can CBP officer shoot at the operator of vehicle if they pose imminent threat?
Yes, at the driver or occupants if they pose imminent threat
Must a cbp officer give a verbal warning if using deadly force?
If feasible
Should also know if suspect understands
And give enough time
Can a cbp officer fire warning shot?
No,
Only air and marine
What is a search?
Intrusion into a reasonable expectation of privacy
There are 3 types of intrusions for search, what are they?
Physical
Visual
Auditory
For auditory searches what do you need?
A court order or consent from one party
How many parties does cbp require for consent for a recorder conversation?
All parties must consent
Two types of REP? What are they?
Subjective( personal belief that something is and will remain private)
Objectively ( society is prepared to recognize the privacy)
How have REP been recognized?
-Personal body integrity
-Home and surrounding curtilage
( curtilage, proximity to home
Building not open to public
Opaque containers
Conveyances
Private conversations
Is there REP on Places, items, communications exposed to the public?
No
What is not considered a search, or conducting a search?
Open view
Overheard conversations
Open fields( beyond curtilage)
Abandoned property
Does lost property have REP?
Yes
Trash, which is considered to have REP and which is not?
Items thrown in public trash cans are considered abandoned property
In home or business if it is in the curtilage it is considered to have REP
Is unclaimed baggage generally treated as abandoned property?
No
Are the use of flashlights, binoculars, night vision goggles considered a search?
No
Is using a thermal infrared imaging device considered a search?
Yes because it provides info about people and things that are not in open view
IR at the border open view is not a search
Are aircraft over flights considered a search?
No, if the police make observations from legally permissible airspace
Are gps tracking devices a search?
To and from in a single trip is not considered a search
Tracking movement in public areas is considered a search
Are dog sniffs on the air surrounding an object considered a search?
No
Are dog sniffs of a person considered a search?
Yes
Do ID cards or travel docs have REP?
No, they are meant to give information to gov officials
Describe warrant procedure?
- officer gets all facts to establish PC to support search or seizure
- officer prepares affidavit describing facts
- magistrate or judge reviews warrant application and issues warrant
- officers execute warrant, knock and announce
What are exceptions to the warrant requirement for an arrest?
Arrest in public
Palin view seizure
Mobile conveyance search
Other exceptions for warrant requirement for an arrest? Exigent circumstances
- Hot pursuit of fleeing felon
- imminent destruction or removal of evidence
- imminent loss of life, serious injury or destruction of property
What is the purpose of SIA?
Prevent arrestees access to weapons , evidence, or means of escape
Scope of SIA?
Full patdown( including items in pockets)
Any objects in arrestees possesion(bags)
Areas of arrestee immediate control( grab area)
SIA involving vehicle?
If officer cannot secure arrestee and arrestee remains within reaching distance of car
Officer has reasonable belief that evidence might be in car
SIA for cell phones?
Officers may not search cell phone on SIA
Need warrant or must be exigent circumstance
Must consent be given voluntarily?
Yes
Is tough choice between lawful options still voluntary?
Yes
When consent is given by someone with authority:
What is actual authority?
Any person with REP in an item or location has authority to give consent
Person with full access( whether or not they are person in charge)
Limited access consent
Two or more people, both mist consent
Apparent authority?
Any person who reasonably appears to have access to and REP in a location
When someone gives consent can they stop the search? And can they also tell you where to search only?
Yes
Border search background: when did the first US congress pass laws to perform suspicion-less searches?
1789
Purpose: to protect nations borders, revenue, prohibit unlawful importation/exportation or merchandise
What are the three requirements for a border search to be lawful?
Conducted by authorized gov officer(cbp, usbp, ice,oam,coast guard e4 and above)
Searching for merchandise, persons admissibility, aliens
At border or FEB
Examples of border search areas?
Land
Air
Sea
What three things do you
Need for FEB inbound?
Reasonable certainty of
- Nexus to border
- No materials change
First practical detention point
What are three things required for FEB out bound?
Reasonable certainty:
There will be border nexus
There will be no change in materials
Last practical detention point
Examples of FEB inbound and outbound?
Land
Sea
Air
Which are common outbound border search operations?
Currency reporting
Export control
What are the requirements for extended border search?
Reasonable certainty:
Border nexus
No change in materials
Reasonable suspicion of criminal activity
Examples of EB?
Controlled delivery
After target passes first practical detention point
What is 19 USC 1595(b) ?
Authorizes officers to enter private lands and buildings “other than dwellings of house” to perform border search
Can you race to target?
No, racial profiling is prohibitted
Which classification is diplomat?
A 1,2
C 3
G 1,3
Must have state department issued creds
Are foreign diplomats and their immediate family immune from any form of arrest or detention, search or seizure?
Yes, once immunity has been verified
Does a US citizen have diplomatic immunity in the US, if they are diplomats?
No
Are diplomatic pouches properly identified immune from any form of arrest or detention, or search or seizure?
Yes
If officer has PC to believe Their is contraband inside Personal luggage belonging to diplomatic personnel with full immunity, what mist they do?
Notify supervisor
If officer has PC to believe that there is contraband in a consular pouch, what must officer do?
Ask consular for permission to search the pouch
If official consents, search bag in their presence and detain any contraband
If consent is not given, consular pouch may be returned to point of origin
What level of suspicion does a cbpo need for a non destructive search?
Zero
Can a cbpo officer remove gas tank of vehicle to search it with zero suspicion?
Yes
For a destructive search what level of suspicion does a cbpo need?
Reasonable suspicion
When searching items that contain information, what level of suspicion does a cbpo need to review and analyze?
Zero suspicion
What level of suspicion does a cbpo need for technical or translation assistance?
Zero suspicion
When requesting subject matter what level of suspicion does a cbpo need?
Reasonable suspicion
How many days can we keep documents or electronic devices?
5 days with sup approval
May sealed class mail be opened when performing a border search by cbpo?
Yes if it is not in US postal service possession
If it is in USPS possession then warrant or consent
For immediate patdown search to look for weapons what level
Of suspicion is needed?
Some or mere suspicion
For patdown body search, what level of suspicion is needed?
One articulable fact and sups approval
For a partial body search or medical examination what level of suspicion is needed?
RS
Sup and port director approval
Is SIA subject to personal search handbook?
No
Does right to due process only apply to us citizens?
No it applies to all people( citizens and aliens)
During all phase of criminal case
What does due process and statement mean?
Means the government may not use coerced confessions against defendant
Examples of coercion?
Police violence
Sustained or lengthily questioning
Physiological strategies intended to overcome suspects will
What are examples when you are going to put someone in custody?
Telling suspect your under arrest
Confronting criminal suspect with evidence of his guilt
During border search, performing a personal search that involves a partial body search
Does Miranda right only apply in criminal cases?
Yes
Removal of alien does not trigger miranda warnings
What is an interrogation?
Any words or actions by government officer that knows will likely get an incriminating response
What is not considered an interrogation?
Booking( data questions)
Voluntary statements
Public safety exception
Is express questioning about the suspected criminal activity an interrogation?
Yes
What two things do you need for miranda warning?
Custody and interrogation
For miranda warning, what must a suspect be informed of?
Right to remain silent
Right to consult with an attorney( free pf charge is suspect cannot afford one)
Fact that anything said can be used against them in court
Can you recite miranda from memory?
No always read miranda warning
Waiver of miranda warning, how must waiver be made by suspect if they wish to talk?
Voluntarily, knowingly, and intelligently
Can right be invoked even after they have signed waiver?
Yes anytime they ask for attorney or they wish to remain silent
Are spontaneous statements always admissible?
Yes
What is rule 5a?
To take criminal before magistrate
Statements from defendant may be suppressed
What is 18. USC 3501(c)?
6 hour rule
What is corley test for six hour rule?
If defendant confesses before six hours statement are admissible
If after six hours, courts will decide wether delay was unreasonable, if unreasonable then statement is supressed
Who is considered a juvy in federal criminal offense?
Under 18
What does an officer need to do if they arrest juvy?
Immediately read miranda rights
Notify US attorney and juvy’s parents
When must a juvy be taken to a magistrate?
ASAP
If you apprehend a foreign national myst you notify their consulate?
You
Must let them notify their consulate, if they do not want to notify their consulate make sure their country is not on list that requires notification
What is the jencks rule?
Disclosure of all information to defendants defense
Reports must be clear and relevant most common reason cases get thrown out
What is the brady rule?
Information that may help the defendant, mist be disclosed to defense
A CBP officer who encounters criminal activity while off duty should consider which response options?
Be a good witness
Contact other law-enforcement officers
Take action
Does CBP employment change a persons option to respond as a private citizen?
No
Does CBP policy forbid employees to respond to criminal activities or provide assistance to other as a private citizen off duty
No
The state crimes directive, is it for both on and off duty?
Yes
What determines wether or not the government will represent a cbpo responding off duty ?
Scope of employment
Can a cbpo carry their firearm off duty?
Yes
Must have their credentials
Cannot drink
Must have weapon concealed
Comply with state and local laws
Are cbpo’s held to a higher standard off duty?
Yes
What form is needed for outside employment?
Cbp
3031
Can gifts be accepted from a prohibited source?
No
Why do cbp officers get sued?
Common law
Constitutional claims
What should a cbpo do if sued for job related conduct?
May request representation by DOJ
Immediately notify sup and chief counsel( provide copy of summons)
Do not delay
If officers conduct was during scope of employment will government defend officer in court?
Yes
Performing official duties
1 officer had statutory authority to act
2 officer was directed to act on that authority by cbp
Is cbpo fault at issue?
No, if perfroming duties they are tasked
Who decides scope of employment with cbp supervisors?
DOJ
Is an officer immune from common law tort claims?
Yes
Within scope of employment
Is officer immune from constitutional claims?
No
Potential for qualified immunity
- plaintif allegation does not state constitutional allegation
- constitutional right was not clearly established
- under circumstances, a well trained officer in the same situation could have reasonably believed the conduct was proper
When does cbp pay for officers under judgement?
Certificate seizure was supported by PC
Certificate officers conduct was directed by sup
Cbp determines payment of judgement is best interest for agency
What is 19 USC 507?
Allows cbp officer to demand assistance from any person when necessary to perform officers lawful duties
