Supervisory Border Patrol Agent 1TC Legal Update Training United States Customs and Border Protection Office of the Chief Counsel CBP ROVING PATROL 00007334 2 November 6, 2017 2 Preliminary Matters - What is the purpose of SBPA training? I What is the purpose of the SBPA legal update? I What do you expect from the legal update? I When did you last attend formal legal training? I What if a fellow agent asked you the following question(s), what would your answer be? CBP ROVING PATROL 00007334 3 November 6, 2017 3 Preliminary Matters - If a car stops at an immigration checkpoint, is it seized? - If a bus is sent to secondary at a checkpoint, is it seized? - Are the people on the bus seized? - If you perform a Roving Patrol Stop have you conducted a seizure? - If you see a car driven by an illegal alien cross the border, can you search the car? How much of the car? CBP ROVING PATROL 00007334 4 November 6, 2017 4 Preliminary Matters - What if you stop a car driven by an illegal alien, can you search the car incident to arrest? How much of the car? I When must an agent M/rana?izea suspect? I If you see a pot plant in a car, can you lawfully enter the car to seize it? Under what theory? I If you see a pot plant in a house, can you lawfully enter the house to seize it? Under what theory? CBP ROVING PATROL 00007334 5 November 6, 2017 5 Preliminary Matters - If you use a listening device to overhear a conversation, is the action legal? - What level of suspicion does an agent need to send someone into secondary at a checkpoint if there is no immigration violation? - What must you do to conduct a lawful bus check? Does it matter where the bus is when you perform the check? Why? CBP ROVING PATROL 00007334 6 November 6, 2017 6 Fourth Amendment CBP ROVING PATROL 00007334 7 November 6, 2017 7 t' Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, SHALL NOT BE VIOLATED, and no warrants shall issue. but uoon probable cause. supported bv oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. CBP ROVING PATROL 00007 8 November 6, 2017 8 Articulable Facts - Building blocks of suspicion - Specific and Objective - Quality not quantity - Based on Training and Experience of the BPA - Totality of the Circumstances - How obtained I Racial Profiling (1.5. v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000) November 6, 2017 00007334 - 9 Levels of Suspicion - Reasonable Level of suspicion - Level of suspicion is a label used to describe how certain an agent is that a set of facts is true - Whether search or seizure is legal determined by level of suspicion agent had prior to search or seizure CBP ROVING PATROL 00007 10 November 6, 2017 10 Levels of Suspicion November 6, 2017 Probable Cause (Cause to Believe) Reasonable Suspicion (Cause to Suspch Some or Mere Suspicion, (a hunch) Zero or No Suspicion CBP ROVING PATROL 00007334 - 11 11 Seizures - Seizure of an object Government interference with a possessory right or interest United States v. Jacobsen,_466 US. 109 (1984) - Seizure of a person Government interference with freedom of movement where a reasonable innocent person would not feel free to terminate the encounter - Consensual Encounter (No seizure) Government interference with freedom of movement where a reasonable person would feel free to leave or terminate the encounter CBP ROVING PATROL 00007334 12 November 6, 2017 12 Seizures - Types - Zero Suspicion Detentions POE, Immigration Checkpoints, Ramp Checks, Vessel Document Checks DUI Checkpoints, License and Registration Checks I Reasonable Suspicion Detentions ?Investigative Detentions? or ?Terry Stops? (Roving Patrol Stops) - Seizures based on Probable Cause Arrest of person or more permanent seizure of an object (for use as evidence or forfeiture) CBP ROVING PATROL 00007 13 November 6, 2017 13 Temporary Seizure based on Reasonable Suspicion I ?Investigative Detention? or ?Terry Stop" or ?Roving Patrol Stop? I Purpose investigate suspicion of criminal activity I Brief Investigative Inquiry grief Due Diligence . as. v. Sharpe, 470 0.5. 675 (1985) Investigative con?rm/dispel suspicions Inquiry least intrusive means Required for ALL temporary seizures I Disposition I Cases Terry v. Ohio, 392 US. 1 (1968) (1.5. v. Brl'gnoni-Ponce; 422 US. 873 (1975) Brand/in v. California, 127 S. Ct. 2400 (2007) 14 November 6, 2017 14 Permanent Seizure based on Probable Cause - Object Evidence Fruits/Instruments of Crime Contraband Subject to Forfeiture I Person Probable cause that a crime is or has been committed Probable cause that the person you are arresting committed the crime - Arrest Defined November 6, 2017 15 Thinas: the cnurts: Innk at tn determine when an investigative detention has become an arrest - How far Suspect Moved - Length of Detention/Due Diligence Questions related to reason for stop Number of suspects and agents involved False Information from suspects Backup necessary Canine requested timely Communication or computer problems CBP ROVING PATROL 00007334 16 November 6, 2017 16 Thina: the court: look at tn determine when an investigative detention has become an arrest - Tone/Demeanor - What Suspect Told about the detention I Miranda - Degree and manner of force used - Searched CBP ROVING PATROL 00007 17 November 6, 2017 17 Use of Force - Seizure if Physically applies force Person yields to agents show of force - Reasonable under 4th Amendment if Necessary Reasonable - Graham v. Connor, 490 US. 386 (1989) - Deadly Force reasonable if Probable Cause to believe that agent or another is in imminent danger of death or serious bodilv iniurv: and Probable Cause to believe that deadly force is required to eliminate the threat of death or serious bodily injury I Imminent danger of death or serious bodily injury Opportunity Ability Intent November 6, 2017 CBP ROVING PATROL 00007334 18 18 Use of Force Policies - Fleeing Subjects Tennessee v. Garner, 471 US. 1 (1985) Scott v. Harris, 550 US. 372 (2007). Brooks v. Gaenz/e, 614 F.3d 1213 (10th Cir. 2010) - Vehicles Disabling Shots Driver or Passenger - Danger of Death or Serious Bodily injury I Need to use deadly force outweighs any risk to the public - Verbal Warnings - Warning Shots November 6, 2017 19 Definition of Search I Search Government Intrusion [physical, visual, auditory] Into a reasonable expectation of privacy (REP) 1. Whether the individual, by his conduct, has exhibited an actual expectation of rivacy; that is, whether he has shown that sought to preserve something as private 2. Whether the individual?s expectation of privacy is one that society is prepared to recognize as reasonable - Katz United States, 389 US. 347 (1967) CBP ROVING PATROL 00007334 20 November 6, 2017 20 Search - Government I Intrusion - Reasonable Expectation of Privacy (REP) ?5 CBP ROVING PATROL 00007334 21 November 6, 2017 21 Situations where Courts have routinely found REP - A Persons Body - Dwellings and Curtilage Proximity/Connection to Dwelling Enclosed? How used Steps taken to prevent observation I Buildings - Baggage Bond United States, 529 US. 334 (2000) - Conveyances - Private Communications CBP ROVING PATROL 00007334 22 November 6, 2017 22 No Reasonable Expectation of Privacv - Open Fields No REP from Physical Intrusion U.S. v. Oliver, 466 U.S. 170 (1984) Statutory Authority to enter private lands - INA 287(a)(3) Patrol Border ICustomary or reasonable and necessary to prevent entry of illegal aliens into U. S. No REP 25 miles Consent of landowners/occupants No consent supervisor U.S. v. Romero-Bustamente, 337 F.3d 1104 (9th Cir. 2003) - Agricultural Lands INA 287(e) - Border Search CBP ROVING PATROL 00007334 23 November 6, 2017 23 No Reasonable Expectation of Privacy - Open View No REP from visual intrusion - Overheard Conversations No REP from auditory intrusion with unaided ear Search I Government I Intrusion< - Reasonable Expectation of Privacy (REP) November 6, 2017 CBP ROVING PATROL 00007334 - 25 25 No Reasonable Expectation of Privacy - Abandoned Property ?Disc aimer of Ownership . as. v. Hernandez, 7 F. 3d 944, 947 (10th Cir. 1993) Examples Trash Bailout ?Cannot be caused by illegal government conduct Lost Property November 6, 2017 26 26 No Reasonable Expectation of Privacy - Technology Technology Used to Overcome REP Search Examples - Flashlights - Binoculars - Night Vision Equipment (1.5. v. Vela, 486 F. Supp. 2d. 587 (W.D. Tex. 2005) - Infrared Imaging Ky/lo v. 11.5., 121 S. Ct. 2038 (2001) CBP ROVING PATROL 00007334 27 November 6, 2017 27 No Reasonable Expectation of Privacy - Canine Sniffs No Search I No Intrusion ?Un ess intrudes on REP I Body I Clothing - Dwelling or Curtilage Probable Cause (1.5. v. Place, 462 US. 696 (1983) Illinois v. Cabal/es, 125 S. Ct. 834 (2005) CBP ROVING PATROL 00007334 28 November 6, 2017 28 Constitutional Analysis Does the proposed conduct constitute a Fourth Amendment Seizure or Search? If the conduct constitutes a Fourth Amendment Seizure or Search, do you have a warrant, or may you act upon a recognized exception to the Fourth Amendment?s warrant or probable cause requirements? What level of suspicion is required to make the Seizure or Search constitutionally reasonable? What statutory or regulatory restrictions impact upon the proposed operation and how do those restrictions impact upon your execution of those operations? CBP ROVING PATROL 00007334 29 Warrant Probable Cause Act Reasonably Prepare Warrant and Af?davit Submit to AUSA for Approval Review by Judge 14 day rule Daytime ?knock and announce? Hudson v. Michiqan Detention/Frisk Mueh/er v. Mena 125 5. Ct. 465 (2005) Copies (Warrant/Inventory) What you can seek I What you can seize I Items Listed/"Plain View" CBP ROVING PATROL 00007334 30 November 6, 2017 30 Reasonable Searches and Seizures - Exceptions to Warrant Requirement Arrest (seizure) in Public Plain View Seizure (seizure) Mobile Conveyance (search) Exigent Circumstances (search) - People hot pursuit - Things now or never Kentucky v. King, 131 S. Ct. 1849 (2011) - Emergency situation Michigan v. Fisher, 130 S. Ct. 546 (2009) CBP ROVING PATROL 00007334 31 Reasonable Searches and Seizures I Exceptions to the Warrant and Probable Cause Requirements Search Incident to Arrest I AZV. Gent, 129 1710 (2009) Consent (search) I Georg/a v. Randolph, 547 US. 103 (2005) I United States v. Reeves, 524 F.3d 1161 (10th Cir. 2008) I US. v. Caste/lanos, 518 F.3d 965 (8th Cir. 2008) Terry Stop (seizure) Terry Frisk (search) I AZ v. Johnson, .7 29 5. Ct. 781 (2009) I Minnesota v. Dickerson, 508 US. 366 (1993) Inventory (search) Checkpoint (seizure) Border Search (seizure and search) CBP ROVING PATROL 00007334 32 As Your Suspicion So Does Your Authority to Search and Seize R.C. Border Nexus No Material Change Creates a ?Border? to Conduct a Detention and Search At Mobile Hot ?Now or Arrest in Emergency Conveyance Pursuit of a Never? Search P.C. Public Search Fleeing Felon Search Protective Non-Routine? Border . . Frisk Investigative Sweep Search Incident Search (Search for . Detentlon (Search for Hidden Threats to Arrest [Partial Body Search of Weapons OnlyPerson Destructive Strip Search of Person Assa'lant or Env'ronmental Search of an Ob'ect I I Search of ?Gant? area in a Car Zero Sus Border Detention Search Pilot Cert. Inspection/ Vessel Doc Ck. BP Immigration Check Pt [Patdown Search of a Person, Examine Information (hard copy and electronic), Non- Destructive Search of an Object] Pilot involved in ?ight operations? Vessel in correct waters? Properly situated check point? Admin Reason ?Rou?ne? Zero Susp Search Incident to Arrest Arrestee?s Exterior Clothing The other person is in control Arrestee?s immediate vicinity CBP ROVING PATROL 00007334 33 CASE UPDATES CBP ROVING PATROL 00007334 34 November 6, 2017 34 Linewatch - United States v. Romero -Bustamante, 337 F. 3d 1.704 Cir. 2003) - United States v. Troop, 514 F.3d 405 (5th Cir. 2008) - United States v. Perea-Rey, (9th Cir. 2012, Citation Pending) - United States v. Hernandez-Hernandez, 5 1 9 F. 3d 1236 (10th Cir. 2008) CBP ROVING PATROL 00007334 35 November 6, 2017 35 Roving Patrol - United States v. 0/ivares-Pacheco, 63 3 F. 3 cl 399 (5th Cir. 2011) I United States V. Baut/Sta-S/lva, 567 F. 3d 1266 (11th Cir. 2009) - United States v. Nasser, 479 F.3d 1166 (9th Cir. 2007) - United States v. Juarez? Torres1108 (D. NM 2006) CBP ROVING PATROL 00007334 36 November 6, 2017 36 Immigration Checkpoints - US. v. Padilla-Aguirre, 311 F.3d 647 (5th Cir 2002) . 0.5. v. Jaime, 473 F.3d 178 (5th Cir. 2006) - U.5. v. Ventura, 447 F. 3d 375 (5th Cir. 2006) - US. v. Car/05, 148 Fed. Appx. 622 (9th Cir. 2005) I U.5. v. Gabriel, 405 F. Supp. 2d 50 (D. Me. 2005) CBP ROVING PATROL 00007334 37 November 6, 2017 37 Transportation Checks - United States v. Drayton, 536 U. 5 94 (2002) - Border Patrol Handbook, Chapter 14.4(d) CBP ROVING PATROL 00007334 38 November 6, 2017 38 U.S. v. Drayton (1) Agents board the bus with the permission of the operator during a scheduled stop. (2) U_p_lt3c > three agents board the bus in uniform or in plainclothes with badges VISI e. (3) Agents do not use the public address system on the bus and do not make a general announcement on-board the bus. (4) One agent inspects the passengers beginning at the rear of the bus and working forward. (5) One cover agent remains at the rear of the bus, and one cover agent remains at the front of the bus without blocking the door. (6) The contact agent approaches passengers from behind and speaks in a voice just loud enough for individual passengers to hear. (7) Agents do not block the aisle and do not obstruct the exit doors. (8) The contact agent identi?es himself or herself and displays a badge upon approaching each passenger. (9) The contact agent may ask questions, request identification, and/or request consent to conduct a search or a frisk. (10) The contact agent is not required to advise passengers of their right to refuse to cooperate. (11) Any passenger who refuses to answer questions or who chooses to exit the bus must be allowed to do so. CBP ROVING PATROL 00007334 39 November 6, 2017 39 BORDER SEARCH CBP ROVING PATROL 00007334 40 November 6, 2017 40 Border Search Requirements - Performed by an authorized government of?cer - Searching for merchandise, evidence of a person?s admissibility - At the ?border? -1. Performed by authorized government officer I CBPO I ICE I 0AM I Coast Guard (E4 and above) I BPA I Cross Designees - 19 USC 507 CBP officer who is authorized to conduct border searches to demand assistance from any person when such assistance is necessary to perform the officers lawful duties CBP ROVING PATROL 00007334 42 November 6, 2017 42 Searching for - Merchandise Goods/wares/chattels Monetary Instruments Any tangible thing not part of the human body - Evidence of admissibility Anything that could help prove that an alien may or may not be lawfully admitted into the US. I Aliens People are not merchandise, however you have authority to search for people under the INA CBP ROVING PATROL 00007334 43 N0velnuel o, 4U.l./ At the border - Land border - Sea border 3 miles 9 miles - Air border CBP ROVING PATROL 00007334 44 November 6, 2017 44 - 1. Reasonable certainty there has been border nexus - Person or thing crossed the border; or - Person or thing had meaningful contact with someone or something that crossed the border 2. Reasonable certainty there has been no material change - Person or thing has not changed I No opportunity to acquire domestic items 3. Search occurs at first practical detention point November 6, 2017 45 - 1. Reasonable certainty there will be a border nexus 2. Reasonable certainty there will be no material change 3. Search occurs at last practical detention point - Purpose: Insure exports comply with US. law 22 USC 2778 CBP ROVING PATROL 00007334 46 November 6, 2017 46 Conducted some point beyond FEB Inbound Reasonable certainty there has been a border nexus Reasonable certainty there has been no material change Reasonable suspicion of criminal activity Examples CBP ROVING PATROL 00007334 - 47 November 6, 2017 47 Border Search-Policy Issues I Containers- Zero Suspicion: Luggage, X-Ray, Cargo, Gas Tank, U.5. V. 541 US. 149 (2004) Reasonable Suspicion: Destructive searches I People Zero Suspicion: Pat down Reasonable Suspicion: Partial Body Search, X-ray I Documents, books, Pamphlets and other Printed Materials Zero Suspicion: glance at the document, see United States v. Se/jan, 547 F.3d 993 (9th Cir. 2008) Reasonable Suspicion: detaining or copying a document I Absent Probable Cause may only retain documents regarding immigration matters Probable Cause- Permanent seizure of the document or copy I Computers, Hard Drives, Electronic or Digital Storage Devices Zero Suspicion: examining device and glancing at ?les Reasonable Suspicion: detaining device, see United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011); (1.5. v. Arno/0, 533 F. 3d 1003 (9th Cir. 2008) (DO NOT COPY FILES) I When in doubt contact computer forensic specialist to conduct search Probable Cause- Seize device as evidence or for forfeiture. Absent Probable Cause may only retain documents regarding immigration matters CBP ROVING PATROL 00007334 - 48 SELECT STATUTORY AUTHORITIES AND CRIMES Statutory Authority Overview - INA 235/8 U.S.C. 1225 operational authority at the line (arriving aliens) - INA 287/8 U.S.C. 1357- interior operational authority - INA 252/8 U.S.C. 1282- crewmen/ conditional landing permits - Title 19 (USC) Customs authorities November 6, 2017 0007334 5? 50 November 6, 2017 Department oI Homeland Saw?y 031? 50/1 mi 20126 US Customs and Border Protection MY 0-7 was WMORANDL FR SUBTECT: De?ning, Rummuhlc Distance for Border l?auul Operumrns 0n Aplil 2'3. 2003, the Of?ce of Br>rd=r Patrol brie?d the L?ommi?mumcr's of?ce as well as the Of?ce ofChichounseJ and O?icc of Rel-:5 and Regulatium? IORR) on thr. roving patml authority and limutatinm wthin ma miles ofthc uni-mammal Burdcr by poiicy outlined in 15' Cf P. 257 Ht 287.1 I was seeking to amend the dclinitim as outlined in existing rcgululion undct Section 257111)}. xlulni in put, Ihc following. in the opinion afa Alan! Spcciw? Agcur in 2c .2 d?u?umu or her Jen-?f0" dtm'ic! ofmorc than HM Lul- mainfr'um any ummal boundar} u, ?w United Stab? would tin?h'ma mnces be reuwnuble, .wuh C'hiqft?ako! ?been! or Spain! 4geur in Charge .shdH?lnvurlid conwicrc n'po? we?: review! In Ike mower (In: Comma miner q} (human: and Border Plan-mo". or the .?kcrduryjr-r 1mm; grumm and Customs Enforcement, .1 who mm: ifr'u? that ?Sut?h m?lm?! 1' d??l'a?rt? such a'mlamw be reunrmabht have revicwcd and 01km mtu consideration the 11:: Umtcd States, the existing con?unnc: (If transportation arteries than: [he bcuundaries of the United Stulcx, the Mululum density ofthc United Statcs, 1h: Lu?'tnl of oouwyamcs tued by smugglers and aliens hocking unlawful may through the. interior ul?Lhc United Stems and the wealth nl'rcliahlc information an: to the and routing, o[ pawns effecting illegl entry into 1h: United States. Bascd on [his caknsivc rcvicw and the hneltng Am} 29. 2008. it ?as determined by CBP, 000 and ORR that "masonable distance" {mm the :xisling rcgularory de?nition 01 I00 air miles should be removed firm the Code of 1"edeml Regululinns (CFRJ. The ?Unit! Palml will continue the same HQ approval proccsx when contemplating highway or enforcement actions at bubs that me rcquircd. OBP mill supp-m ORR md OCC With any briefings OI infomaatiun mucus lo facilitate the change in the CPR bri?jlfY/d?tf" discussion-'date' CBP ROVING PATROL 00007334 - 51 51 Statutory Authority - Private Lands INA Private lands/not dwellings to search for aliens and patrol border I 25 Miles I Policy restrictions on schools, places of worship and funerals - DHS Policy is to inform landowner INA 287(e) 19 U.S.C. 1595(b) Enter private lands to conduct a border search: US. v. Emmens 893 F.2d November 6, 2 1 990) CBP ROVING PATROL 00007334 - 52 52 Statutory Authority I Aliens - Inspection I 48 Hours ?19 U.S.C. 1589a any federal rrimo in :mnni-c nrocnnro Federal felonies outside of agents presence (1.5. v. Juvenile Female, 566 F.3d 943 (9th Cir. 2009) CBP ROVING PATROL 00007 53 November 6, 2017 53 T-19 Tools-Overview I Authority: 19 U.S.C. 1589a (3) (Criminal Arrest) 19 U.S.C. 1595 (Enter Private Land) 19 U.S.C. 1595a (Forfeiture) 19 U.S.C. 1581 and 482 (Border Search) - Violations 19 U.S.C. 1433 19 U.S.C. 1436 (Reporting Requirements 19 U.S.C. 1459 (Illegal Entry) 18 U.S.C. 545 (Smuggling Merchandise) CBP ROVING PATROL 00007334 54 Reporting Requirements - Reporting Requirements 19 U.S.C. 1433(a) Reporting of Vessel Arrival 19 U.S.C. 1433(b) Reporting Vehicle Arrival - Penalties (19 U.S.C. 1436(a)) Civil $5000 and any conveyance used in connection with violation is subject to forfeiture Criminal (1 to 5 years, up to $10,000) Forfeiture of merchandise Undeclared articles treated as smuggled CBP ROVING PATROL 00007334 55 November 6, 2017 55 Reporting Requirements - Reporting Requirements 19 U.S.C. 1433(c) Reporting Arriving Aircraft 19 U.S.C. 1459 19 U.S.C. 1459(a) Pedestrians 19 U.S.C. 1459(c) Unreported Conveyances - Penalties 19 U.S.C. 1459(a) Unlawful Acts 19 U.S.C. 1459(f) Civil Penalty Up to $5000 fine 19 U.S.C. 1459(9) ?Criminal Punishment 1 CBP ROVING PATROL 00007334 56 November 6, 2017 56 Merchandise Smuggling - 18 U.S.C. 545 Fraudulently or knowingly Import or bring into the US. Any Merchandise Contrary to Law Contrary to any law Penalty 20 Forfeiture of the merchandise CBP ROVING PATROL 00007 57 November 6, 2017 57 Money Crimes - 31 U.S.C. 5316 Currency and Monetary Instrument Reporting - 31 U.S.C. 5332 Bulk Cash Smuggling - 18 U.S.C. 1960 Illegal Money Transmitters November 6, 2017 0073 58 58 Forfeiture Statutes - Customs Forfeitures 19 1433 - Conveyances used to enter US. in violation of customs laws 19 USC 1595a(a) I Items used to transport or hid merchandise 19 USC 1595a(c) - Merchandise imported contrary to law 19 USC 1595a(d) - Merchandise exported contrary to law 19 USC 1703 - Vessels CBP ROVING PATROL 00007334 59 November 6, 2017 59 Forfeiture Statutes - Immigration Forfeitures 8 USC 1324(b) - Controlled Substance 21 USC 881 - Monetary Instrument Forfeitures 31 USC 5317-CMIR Forfeitures 31 USC Cash Smuggling Forfeitures 18 USC 1960-Illegal Money Transmitter Forfeitures CBP ROVING PATROL 000073 November 6, 2017 60 Maritime Operations CBP ROVING PATROL 00007334 61 November 6, 2017 61 Customs Waters 12 Nm High Seas Border 3 x" Territorial Seas International aters I Mexico CBP ROVING PATROL 00007334 62 Title 19 Maritime Operations Vessels ?employed to defraud the revenue? of the United States - Without navigational lights - Failure to stop after being ordered to do so (?Hot Pursuit?) - Hovering vessel CBP ROVING PATROL 00007334 - 63 Title 19 Maritime Operations I Why I Where your maritime authority comes from United States v. W/amonte-Marquez, 462 US. 579 (1983) 19 U.S.C. 1581 - Hail, Stop, Board and Check documents of any vessel located in; Customs waters Inland waters with ready access to open sea Inland waters with ready access to foreign territory High seas if being used to defraud revenue of United States Foreign Vessel subject to special arran ement CBP ROVIN ATROL 00007334 64 Title 19 Maritime Operations - Examples of types of documents you can check Manifests Coast Guard Certificates State Documents Permits Licenses Insurance Examine vessel?s official number I May enable agent to lawfully travel deep into ship to examine the number Open View observations - Reasonable Suspicion Brief Investigative Inquiry - Plain View Seizure - Readily Mobile Conveyance Search - FEB inbound or outbound - Extended Border search CBP ROVING PATROL 00007334 65 Title 19 Maritime Operations I 19 U.S.C. 2237 Knowingly disobey order of federal officer to heave to Forcibly resist or interfere with boarding False information given to officer during boarding Title 19 Maritime Operations I 19 U.S.C. 1587 Board for documents check and for examination of cargo any vessel ?employed to defraud revenue? of the United States. - Hovering - Failure to display lights I ?Hot Pursuit? - Foreign vessel subject to examination pursuant to treaty or special arrangement (?arnn pyaminatinn on site or at mOSt convenient POE CBPROVINGPATROL00007334-67 Customs Waters 12 Nm High Seas Border 3 x" Territorial Seas International aters I Mexico CBP ROVING PATROL 00007334 68 Title 19 Maritime Operations I 19 U.S.C. 1703 Seize for Forfeiture Used to defraud revenue Built or outfitted for smuggling I Summary Hail, stop board and conduct a document check on any vessel in Customs waters or Inland waters with ready access to open seas I Consent I Reasonable Suspicion I Fl?lSk? I Protective Sweep? I Readily Mobile Conveyance I FEB inbound or outbound Used to defraud revenue I Examine documents and cargo I Seize for forfeiture CBP ROVING PATROL 00007334 69 REPORT WRITING CBP ROVING PATROL 00007334 70 November 6, 2017 70 REPORT WRITING REPORT WRITING IS A CRITICAL PART OF YOUR JOB ?If it isn?t in writing, it didn?t happen.? or Without a well-written report, there are no articulable facts WHY WE WRITE REPORTS - Memory Aid- for both you and the Border Patrol - Evidence for BP (immigration court) and against you - Sales Document- AUSA has limited resources Your supervisor?s supervisor THERE ARE THREE KEYS TO A GREAT REPORTRIGHT I MAKE IT CLEAR GET IT ALL All the articulable facts: WHO WHAT WHEN WHERE HOW WHY GET IT RIGHT Write chronologically Check and double check the facts Practice your powers of observation Proofread!! Answer the ?why? MAKE IT CLEAR Write in the first person Use names not labels Use active voice Use simple words and phrases Check your spelling Avoid conclusion words USE NAMES, NOT LABELS Vehicle Residence Victim or Suspect Car, boat, plane, roller skates House, apartment, house boat, cardboard box A person with a name or a description and facts that make you think that about them CBP ROVING PATROL 00007334 - 77 USE ACTIVE VOICE - Active voicethe sentence before the what, or for you English majors; - Put the noun before the verb. Example: The car was driven by me. I drove the car. SIMPLE WORDS AND PH RASES - This officer interrupted this officer?s forward acceleration, immediately bringing this officer to a status of zero acceleration. I stopped. I I affected a car stop and dismounted from my patrol vehicle I stopped and got out of the car. I The anticipated response to the present date has been none. There has been no response. CBP ROVING PATROL 00007334 - 79 SIMPLE WORDS AND PHRASES Made an effort, made an attempt, endeavored, attempted Maintained surveillance over, visually monitored Related, stated, verbalized, articulated Informed, advised, indicated, communicated verbally Initiated, instigated, commenced, inaugurated, originated tried watched said told began CBP ROVING PATROL 00007334 80 SIMPLE WORDS AND PH RASES Do not use abbreviations, unless you spell them out first. Supervisory Border Patrol Agent (SBPA) Patrol Agent in Charge (PAIC) Chief Patrol Agent (CPA) Do not use slang. ?laid in on a trail? ?wets? ?wetbacks? ?Agent asked the driver if he would open the trunk. The driver did not res ond. Agent then ran his Woody on the outside of the vehicle. The K- 9 a erted on the ?Subject states that the vehicle stopped once before encountering Border Patrol and the driver checked on the aliens in the truck when he received a peep on his peeper.? CBP ROVING PATROL 00007334 - 81 CHECK YOUR SPELLING Spelling is 100% effort. Simple words? Use words you already know how to spell. Watch for homonyms: to, too, two; there, they?re, their AVOID CONCLUSIONARY WORDS INDICATED REFUSED ADMIWED A WORD FOR CONFESSED WORD OR DENIED APPROXIMATE CONSENTED QUOTATION OF IDENTIFIED WHO SAID WHAT WAIVED PROFANITY THREATENING OBSCENE EVASIVE UNRESPONSIVE DECEPTIVE CBP ROVING PATROL 00007334 - 83 >mm>c5mu >44>nxmo >nn0m4mo $03? 85024552 58:24 o.H meE?mo 20 $88 $13 m>44mxmo 212658 mcEmo moanmo AVOID CONCLUSIONARY WORDS ANGRY UPSET THE FACTS THAT MAKE YOU THINK HAPPY THIS ABOUT UNHAPPY SOMEONE ELSE INTENTIONAL ACCIDENTAL ATTEMPTED HEARD SAW THOUGHT KNEW CBP ROVING PATROL 00007334 - 85 AVOID CONCLUSIONARY WORDS MATCHING THE DESCRIPTION SUSPICIOUS FURTIVE STRANGE ABNORMAL TYPICAL UNCOOPERATIVE BELLIGERENT COM BATIVE OBNOXIOUS ABUSIVE EXIGENT THE FACTS THAT MAKE YOU BELIEVE THESE APPLY CBP ROVING PATROL 00007334 - 86 SUMMARY GET IT ALL GET IT RIGHT MAKE IT CLEAR FIRST PERSON AND DOUBLE- OF LABELS OBSERVATION ACTIVE VOICE SIMPLE WORDS CHECK SPELLING AVOID CONCLUSIONS CBP ROVING PATROL 00007334 87 MIRANDA CBP ROVING PATROL 00007334 88 November 6, 2017 88 Test Your Knowledge of Miranda v. Arizona I If you arrest a person, you must immediately read him his Miranda warnings or you will have to release him. I Miranda warnings must be read to a person during any seizure in which you intend to interrogate the person. I If a person who is arrested is not read his Miranda warnings, the government will be unable to prosecute him for that crime. I If you question someone who has been arrested without first reading him his Miranda warnings, physical evidence you find as a result of the questioning will be suppressed as the ?fruit of the poisonous tree.? I As long as you are not asking a person questions, you are not ?interrogating? him for Miranda purposes, CBP ROVING PATROL 00007334 89 November 6, 2017 89 Test Your Knowledge of Miranda v. Arizona I You do not need to read an arrested person his Miranda warnings if he tells you that he already knows them. I A person is not in ?custody? for Miranda purposes unless he is told that he is under arrest or is placed in handcuffs. - If a suspect, who is in custody, invokes his right to silence, you cannot talk to him again unless an attorney is present. I If a suspect- ic in invnkeq his rinht tn rnuncel- you can re approach him after a reasonable period of time to see if he?s changed his mind. - Illegally present aliens are not entitled to Miranda warnings. CBP ROVING PATROL 00007334 90 November 6, 2017 90 Test Your Knowledge of Miranda v. Arizona I You can mieqtinn qnmenne readinn him his Miranc? warnings in order to ?soften him no? s?mn the interview, and then read his Miranat rights and begin questioning him again. I The only language used for Miranda warnings is - If you tell a person that he is under arrest but do not read him his Miranda warnings, the government cannot use any subsequent statements he makes against him. CBP ROVING PATROL 00007334 91 November 6, 2017 91 Fifth Amendment ?No be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of Miranda required warnings in order to avoid acquiring compelled statements in violation of the 5th Amendment Miranda warnings required when the person is in Custody and the agent wants to Interrogate that person CBP ROVING PATROL 00007334 92 CBP ROVING PATROL 00007334 93 November 6, 2017 93 Miranda Custody formal arrest or restraint on freedom of movement to the degree associated with formal arrest 10.8. v. North Carolina, 131 S. Ct. 2394 (2011) Maryland v. Shatzer, 130 S. Ct. 1213 (2010) United States v. Hudson, 210 F.3d 1184 (10th Cir. 2000) Interrogation words or actions the agent should know are reasonably likely to elicit an incriminating response United States v. Chen, 439 F. 3d 1037 Cir. 2006 United States v. A ya/ew, 563 F. Supp 2d 409 (N.D.N.Y. 2008) CBP ROVING PATROL 00007334 94 Miranda Procedure Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) Florida v. Powell, 130 S. Ct. 1195 (2010) Response Right to Remain Silent Right to Attorney Consequences Suppression of Statement United States v. Patane, 542 US. 630 (2002) I Can?t soften up Oregon v. Elstaa?, 470 US. 298 (1985) Missouri v. Seibert, 542 US. 600 (2002) - Physical Evidence comes in - Public Safety Exception Michigan v. Bryant, 131 S. Ct. 1143 (2010) Transfer of Custody Citizenship Inquiries United States v. San Juan-Cruz, 314 F.3d 384 (9th Cir. 2002) $6155? States v. Gama-Hernandez, 550 F. Supp. 2d 1228 (SD. Cal. CBP ROVING PATROL 00007334 95 Miranda Juveniles/Federal Juvenile Delinquency Act, 18 U.S.C. 5031-5042 I Read Miranda rights immediately after taking into custody J. D. B. v. North Caro/ma, 131 S. Ct. 2395 (2011) United States v. Jose 0.1., 453 F. 30? 1115 (9?77 Cir. 2006) United States v. CM., 485 F.3d 492 (9th Cir. 2007) I Notify Parents or Guardians Advise of Rights/Charges If unable to reach parent contact consulate Juvenile Must be Permitted Contact w/ Parent Before Interrogation - Notify US. Attorney?s Office Present Forthwith - Detention/ Release CBP ROVING PATROL 00007334 96 PERSONAL LIABILITY CBP ROVING PATROL 00007334 97 November 6, 2017 97 Copies to - Immediate Supervisor . Associate or Assistant Chief Counsel CBP - US. Attorneys Office Gather information Do Not Delay CBP ROVING PATROL 00007334 - 98 November 6, 2017 98 Attorney Client Relationship Limits . Federal Criminal Proceedings - Agency Disciplinary Proceedings I Civil Case related to federal criminal case CBP ROVING PATROL 00007334 99 November 6, 2017 99 1. On Government Business I Had statutory authority to act I directed to act: supervisor, policy, regulation 2. Conduct Reasonably Foreseeable I Negligent Acts CBP ROVING PATROL 00007334 100 November 6, 2017 100 Wrong against an individual in which the injured party is entitled to damages Elements I Duty I Breach I Causation . Injury (Damages) CBP ROVING PATROL 00007334 101 November 6, 2017 101 Types of Claims - Common-Law Torts Absolute Immunity Negligence Assault and Battery False Arrest - Constitutional Claims Quali?ed Immunity Constitutional Claim Clearly established rule Reasonable officer 670/? v. Ramirez, 540 US. 551 (2004) CBP ROVING PATROL 00007334 102 Payment of Judgment - The government may pay any judgment entered against the agent if: Judge issues a certificate stating that the seizure was supported by probable cause Judge issues a certificate stating that the agent?s conduct was directed by a supervisor CBP determines that payment of the judgment is in the best interest of the Agency CBP ROVING PATROL 00007334 103 CBP ROVING PATROL 00007334 - 104 November 6, 2017 104