federal protective service (fps) - detention and arrest (march 23, 2006)

8/14/2019 Federal Protective Service (FPS) - Detention and Arrest (March 23, 2006)

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FEDERAL PROTECTIVE SERVICEDetention and Arrest

OFFICE OF PRIMARY INTEREST: Office of the DirectorDIRECTIVE NO.:ISSUE DATE:EFFECTIVE DATE:REVIEW DATE:SUPERSEDES:C.A.L.E.A.:

DIRECTIVE TITLE: Detention and Arrest

FPS-06-001March 23, 2006March 23, 2006March 23, 20061.2.3,1.2.4,1.2 .5,1.2.6,70.2.1,70.3.1,70.3.2, 72.6.3,74.3.1,84.1.1

Purpose and Scope. This policy directive sets forth the detention and arrest procedures ofthe Federal Protective Service (FPS).2 Authority/Reference.2.1 Title 18 U.S.C., Section 503 I2.2 Title 18 U.S.C., Section 50332.3 Attorney General Guidelines for the Exercise of Law Enforcement Authorities by Officersand Agents of the Department of Homeland Security under 40 U.S.C., Section 1315 (datedFebruary 18 , 2005)2.4 Title 9 United States Attorneys' Manual, Criminal Resource Manual 382.5 Title 9 United States Attorneys' Manual, Criminal Resource Manual 432.6 Department of Homeland Security Management Directive 0480.1 , "Ethics/Standards ofConduct"3 Definitions.3.1 Arrest is to seize and hold under the authority of law.3.2 Contraband is an item or substance whose use or possession is prohibited by (or which isdefined as contraband in) any law of the United States or the state in which the property iscurrently located.3.3 Detention is to the temporary restriction of an individual's liberty for the purpose ofconducting a limited investigation. Detention is also defined as the period of time, prior totrial, during which and individual who has been arrested is confined to a correctional facility.3.4 Evidence consists of such kinds of proof as may be legally presented at a trial, by the act ofthe parties, and through the aid of such concrete facts as witnesses, records, or otherdocuments.

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23.5 Foreign nationals are persons who are not United States citizens.3.6 Juvenile is a person who has not attained his 18th birthday.3.7 Weapons arc any object or substance capable of inflicting bodily hann. This definition isnot restricted to objects that by their inherent design can be used as a weapon such as guns,

knives, razors, clubs, or chemicals.4 Policy. Sworn law enforcement personnel shall comply with all constitutional requirementsand adhere to DHS Ethics/Standards of Conduct, as set forth in Management Directive0480.1, while exercising their law enforcement authority and powers.5 Responsibility.5.1 Regional Directors, or their designee, shall establish liaison with representatives within theirregion from each United States Attorney's Office, United States Marshals Service District,and other federal , state, and local law enforcement agencies including state and localdetention and holding facilities that have agreements with the United States Marshals Serviceto handle federal arrests.5.2 Supervisors shall ensure that employees under their supervision understand and adhere to theguidance set forth in this directive.5.3 All FPS employees shall adhere to the guidance set forth in this directive.6 Investigative Detentions. To the extent necessary to protect federal property and persons onthe property. law enforcement personnel may briefly stop and detain a person forquestioning, including in areas outside of federal property, if there is reasonable suspicionthat the person is involved in criminal activity. Additionally, law enforcement personnelmay perform a limited pat-down search of the individual and their personal effects if there isreasonable suspicion that the person may have a weapon.7 Arrests. To the extent necessary to protect federal property and persons on the property.law enforcement personnel may make arrests. including in areas outside of federal property.without a warrant for any misdemeanor or felony offense against the United Statescommitted in their presence or for any felony recognizable under the laws of theUnited States if there is probable cause to believe that the person to be arrested hascommitted or is committing a felony .7.1 Arrests without warrants:7.1.1 In order for law enforcement personnel to make a warrantless arrest. it is necessary that amisdemeanor or felony offense against the United States be committed in their presence, orthere is probable cause to believe that the person to be arrested has committed or is

committing a felony.7.1.2 A person arrested without a warrant must be brought before a magistrate judge withoutunnecessary delay, and a complaint satisfying the probable cause requirements filed with thecourt. The arresting officer or agent must immediately present the facts of the arrest to theUnited States Attorney. The United States Attorney will make a legal determination as towhat violations will be charged in the complaint. The procedures for preparing a complaintare dependent upon the policies and preferences of the local United States Attorney.Detention and ArrestFPS -06 -001 March 23 , 2006


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7.1.3 The United States Atto rney may decline to prosecute the case on behalf of the United Statesgovernment. If he person under arrest is prosecuted in state or local court, the arrestingofficer or agent shall cooperate fully with the appropriate state or local officials.7.2 Arrests with warrants:7.2.1 Obtaining an arrest warrant: Following an investigation conducted by an officer or agent,the decision to seek an arrest warrant is the responsibility of the attorney for the government.The procedures for securing an arrest warrant are dependent upon the policies andpreferences of the local United States Attorney. When based on the facts and circumstancesof the case, it is necessary to seek an arreest warrant in other than federal court, theprocedures for securing an arrest warrant will depend on the policies and preferences of theaffected prosecuting authority.7.2.2 Preparation for the arrest: Generally, an officer or agent preparing to serve an arrestwarrant must complete a written risk assessment. The risk assessment must first be approvedby the Area Commander or Supervisory Special Agent before being submitted to theDistrict Commander or the Threat Management Branch Chief for final approval and must be

maintained in the investigative file. The risk assessment must document that the officer oragent has addressed all of the following areas: conducting pre-operation intelligence gathering; preparing a site survey: reviewing staffing; reviewing equipment needs; reviewing communications; reviewing the locations of nearby hospitals and trauma centers; conducting a pre-operational briefing; notifying the Uni ted States Marshals Service and pre-trial detention, if applicable; notifying state and local law enforcement agencies, ifapplicable; contacting family services if minors will be present; and, contacting animal control if animals will be left unattended after the arrest.

When exigent circumstances exist that create a situation where the officer or agent does nothave time to complete a written risk assessment (e.g., the safety of the public, victim, orwitness is in jeopardy), the officer or agent shall articulate those circumstances and requestverbal approval from both the Area Commander and District Commander or the SupervisorySpecial Agent and Threat Mangement Branch Chief prior to executing the arrest warrant.Officers and agents shall document verbal request, verbal approvals, and exigentcirucmstances in the form of a 3155 for officers and a report of investigation for agents.7.3 Other Federal, state, or local arrest warrants : For the protection of federal property andpersons on the property, law enforcement personnel may detain fugitives that are wanted for

other federal, state, or local arrest warrants and transport the subject of the warrant toappropriate facilities for processing. Law enforcement personnel must confirm both thewarrant and the jurisdiction's willingness to extradite the subject of the warrant if thejurisdiction holding the warrant is out of state before transporting the subject of the warrant.FPS law enforcement personnel shall transport only to the nearest detention facility forprocessing. FPS law enforcement personnel shall not provide extradition transportation.



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47.4 Juveniles: Law enforcement personnel are responsible for the protection of federal propertyand persons on the property. lfit is necessary to arrest ajuvenile , or an individual claimingto be a juvenile, in order to protect federal property or persons on the property, lawenforcement personnel must immediately notify the United States Attorney and requestguidance.

Law enforcement personnel must advise ajuvenile of Miranda warnings in languageintelligible to the juvenile and take the juvenile before a judicial officer as soon as possibleand within a reasonable period of time. The arresting officer or agent must also notify theparent, guardian, or custodian of the rights of the juvenile and of the nature of the allegedoffense.See also, Title 18 U.S.C. , Section 5031; Title 18 U.S.C., Section 5033; Title 9 United StatesAttorneys' Manual, Criminal Resource Manual 38; and, Title 9 United States Attorneys'Manual, Criminal Resource Manual 43.

7.5 Foreign nationals: Ifit is necessary to arrest a foreign national, or a person claiming to be aforeign national, in order to protect federal property or persons on the property, lawenforc ement personnel must immediately notify the United States Attorney and requestguidance. (See also, FPS-04-005 , Arrest and Detention of Foreign Nationals).

7.6 Diplomats: Ifit is necessary to arrest a person claiming diplomatic immunity in order toprotect federal property or persons on the property, law enforcement personnel mustimmediately notify the United States Attorney and request guidance.7.7 Members of Congress: If it is necessary to arrest an individual claiming to be a Member ofCongress in order to protect federal property or persons on the property, law enforcementpersonnel must immediately notify the United States Attorney and request guidance.8 Citations for misdemeanor offenses and violation of regulations. Citations shall only beissued for misdemeanor offenses and violation of regulations in accordance with establishedguidelines approved by the United States Attorney's Office responsible for prosecutingmisdemeanor criminal offenses before a United States Magistrate in the district that theoffense or violation occurred. Regional Directors, or their designees, shall liaison withrepresentatives from each United States Attorney's Office within their region and establishwritten guidelines for law enforcement personnel that are approved by the United StatesAttorney's Office.9 Handcuff requirements. Persons under arrest must be searched and secured. Generally,except in a secure detention facility, persons under arrest shall be handcuffed with theirhands behind their back. [n addition to handcuffs, the use of flex -cuffs, waist chains, and legirons is permitted if law enforcement personnel have been trained to properly use them.10 Search and seizure without a warrant.10.1 Consent Search: Law enforcement personnel may search if they receive consent from theindividual whose personal effects or person are to be searched. Consent searches are legallyvalid only if conducted without coercion, with the individual's consent granted voluntarily.An individual may withdraw consent at any time before or during the search.10.2 Exigent circumstances: Law enforcement personnel may conduct a search based on exigentcircumstances. A detennination that exigent circumstances exist must be reasonable. TheDetention and ArrestFPS-06-001 March 23 , 2006


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5burden of proving exigency is on the officer or agent making the search. Exigency must bebased upon articulable and reasonable belief, must be reasonably applied, and must not befabricated. Law enforcement personnel may conduct a search based on exigentcircumstances when:

10.2.1 There is probable cause for a search;10.2.2 The safety of the federal property or persons on the property is threatened; and,10.2.3 Evidence is in imminent danger of destruction.10.3 Plain view: Law enforcement personnel may seize weapons and contraband that are in plainview. The officer or agent must be lawfully in the place being searched, it must beimmediately apparent that the object seized is per se illegal and the officer or agent musthave lawful right of access to the object.10.4 Search incident to lawful arrest:10.4.1 Law enforcement personnel may search the area within the individual's immediate reach and

controL The extent to which this search is permitted will depend on the facts andcircumstances of each case. Such search may include a search of personal itcms carried bythe subject.10.4.2 Probable cause that the search wiII yield evidence is not required.10.4.3 The search of a person should be made at the time and place of arrest. Initial searches should

be as thorough as circumstances allow. An additional and complete search of a person underarrest will occur at the nearest detention facility. Persons under arrest shall not be released toanother law enforcement agency without positive knowledge that the individual is notconcealing weapons or evidence. In the event that a person under arrest cannot bethoroughly searched during the initial arrest process, law enforcement personnel must notifythe receiving law enforcement agency.10.4.4 Law enforcement personnel may take possession of any objects found on a person at the timeof arrest and examine those objects as a means of conducting an inventory of the individual'spossessions .10.5 Searching persons of the opposite gender: Law enforcement personnel may conduct asearch ofa person of the opposite gender if a person of the same gender is not immediatelyavailable to conduct the search, or if a delay of the search would jeopardize safety. Lawenforcement personnel should make every reasonable effort to ensure an officer or agent ofthe same gender as the person arrested conducts the search.11 Evidence. Any item of evidentiary value or potential evidentiary value must be inventoried

and documented in the investigative file. Once inventoried, items of evidence should not bereleased to another law enforcement agency, the person under arrest or their representative,or anyone else without the approval of the District Commander or Threat ManagementBranch Chief and the United States Attorney, if applicable. Law enforcement personnelmust keep in mind the chain of custody issues that may become relevant in the prosecutorialphase of an arrest.



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J2 Custody. Law enforcement personnel are responsible for the protection and safety ofaperson under arrest until the individual makes the initial appearance before a magistratejudge or been transferred to the custody of another law enforcement agency. Lawenforcement personnel shall query an electronic database, such as NCIC, to ensure that noperson under arrest is released from custody with an outstanding warrant.12 .1 Re lationship with the United States Marshals Service: The United States MarshalsService is the agency responsible for the custody. care, and transportation of federaloffenders. The Uni ted States Marshals Service will not take custody of any person arresteduntil the subject makes the initial appearance before the magistrate judge. If the magistrate isnot immediately available, the person under arrest will remain in a state or local detention orholding facility that the United States Marshals Service has an agreement with to handlefederal arrests.13 Medical treatmcnt.13.1 Persons under arrest who sustain injuries while being taken into custody, or who at the timeof arrest is obviously suffering from some injury or illness, should have such mattersattended to by competent medical authority without unnecessary delay.13.2 If a person under arrest is injured, an officer or agent must guard the individual until theymake an initial appearance before a magistrate judge or have been transferred to the custodyof another law enforcement agency. This means the officer or agent may have to accompanythe person under arrest to the hospital or other location while the individual receives medicaltreatment.13.3 Unless specifically requested by medical authorities, persons under arrest in transit shall behandcuffed behind their back in accordance with the provisions set forth in this policy.13.4 Persons under arrest may have prescription drugs or medication in their possession. [fFPSlaw enforcement personnel reasonably believe that a person under arrest needs medication orrequires medical attention. they should have such matters attended to by competent medicalauthority without unnecessary delay.13.5 If a person under arrest is injured, it is important to keep a record indicating the remedialaction taken and the corresponding times in the investigative tile.13.6 Persons displaying behavior that, based on the officer's or agent' s training and experience, isindicative of mental illness should be detained and turned over to local law enforcement forinvoluntary commitment or contact local Emergency Medical Services. FPS lawenforcement personnel should abide by local laws pertaining to mentally il l persons, as wellas regional standard operating procedures.14 Miranda warnings. With very limited exceptions, law enforcement personnel arc required

to verbally issue Miranda warnings and obtain a waiver, in writing if possible, prior tointerviewing a person in custody.14.1 Miranda warnings are not required when questioning individuals that are not in custody.14.2 Miranda warnings are not required when questioning an individual in custody about theirpersonal identification information in order to establish their true identity.



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714.3 Miranda warnings are not required when questions, including the location of weapons orexplosives and the identi ty of co-conspirators, are prompted by a concern fo r public safe tyand the safety of federal property or persons on the property.15 No Privacy Right Statement. This Directive is 3n internal policy statement of FPS. It isnot intended to, and does not create any rights, privileges, or benefits, substantive or

procedural, enforceable by any party against the United States; its departments,agencies, or other entities; its officers or employees; or any other person.

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federal protective service (fps) - detention and arrest (march 23, 2006)

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