FEDERAL PROTECTIVE SERVICE

Detention and Arrest

OFFICE OF PRIMARY INTEREST: Office of the Director

DIRECTIVE NO.: FPS-06-001

ISSUE DATE: March 23, 2006
EFFECTIVE DATE: March 23, 2006
REVIEW DATE: March 23, 2006
SUPERSEDES:
C.A.L.E.A.: 1.2.3,1.2.4,1.2.5,1.2.6,70.2.1,70.3.1,
70.3.2, 72.6.3,74.3.1,84.1.1

DIRECTIVE TITLE: Detention and Arrest

Purpose and Scope. This policy directive sets forth the detention and arrest procedures of
the Federal Protective Service (FPS).

2 Authority/Reference.

2.1 Title 18 U.S.C., Section 503 I

2.2 Title 18 U.S.C., Section 5033

2.3 Attorney General Guidelines for the Exercise of Law Enforcement Authorities by Officers
and Agents of the Department of Homeland Security under 40 U.S.C., Section 1315 (dated
February 18, 2005)

2.4 Title 9 United States Attorneys' Manual, Criminal Resource Manual 38

2.5 Title 9 United States Attorneys' Manual, Criminal Resource Manual 43

2.6 Department of Homeland Security Management Directive 0480.1 , "Ethics/Standards of

Conduct"

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 is
defined as contraband in) any law of the United States or the state in which the property is
currently located.

3.3 Detention is to the temporary restriction of an individual's liberty for the purpose of
conducting a limited investigation. Detention is also defined as the period of time, prior to
trial, 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 of
the parties, and through the aid of such concrete facts as witnesses, records, or other
documents.

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3.5 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 is
not 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 requirements
and adhere to DHS Ethics/Standards of Conduct, as set forth in Management Directive
0480.1, while exercising their law enforcement authority and powers.

5 Responsibility.

5.1 Regional Directors, or their designee, shall establish liaison with representatives within their
region from each United States Attorney's Office, United States Marshals Service District,
and other federal , state, and local law enforcement agencies including state and local
detention and holding facilities that have agreements with the United States Marshals Service
to handle federal arrests.

5.2 Supervisors shall ensure that employees under their supervision understand and adhere to the
guidance 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 on
the property. law enforcement personnel may briefly stop and detain a person for
questioning, including in areas outside of federal property, if there is reasonable suspicion
that the person is involved in criminal activity. Additionally, law enforcement personnel
may perform a limited pat-down search of the individual and their personal effects if there is
reasonable 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 States
committed in their presence or for any felony recognizable under the laws of the
United States if there is probable cause to believe that the person to be arrested has
committed 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 a
misdemeanor or felony offense against the United States be committed in their presence, or
there 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 without
unnecessary delay, and a complaint satisfying the probable cause requirements filed with the
court. The arresting officer or agent must immediately present the facts of the arrest to the
United States Attorney. The United States Attorney will make a legal determination as to
what violations will be charged in the complaint. The procedures for preparing a complaint
are dependent upon the policies and preferences of the local United States Attorney.

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7. 1.3 The United States Attorney may decline to prosecute the case on behalf of the United States
government. If the person under arrest is prosecuted in state or local court, the arresting
officer 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 and
preferences of the local United States Attorney. When based on the facts and circumstances
of the case, it is necessary to seek an arreest warrant in other than federal court, the
procedures for securing an arrest warrant will depend on the policies and preferences of the
affected prosecuting authority.

7.2.2 Preparation for the arrest: Generally, an officer or agent preparing to serve an arrest
warrant must complete a written risk assessment. The risk assessment must first be approved
by the Area Commander or Supervisory Special Agent before being submitted to the
District 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 or
agent 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 United 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 not
have time to complete a written risk assessment (e.g., the safety of the public, victim, or
witness is in jeopardy), the officer or agent shall articulate those circumstances and request
verbal approval from both the Area Commander and District Commander or the Supervisory
Special Agent and Threat Mangement Branch Chief prior to executing the arrest warrant.
Officers and agents shall document verbal request, verbal approvals, and exigent
cirucmstances in the form of a 3155 for officers and a report of investigation for agents.

7.3 Other Federal, state, or local arrest wa r ra nts: For the protection of federal property and
persons 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 to
appropriate facilities for processing. Law enforcement personnel must confirm both the
warrant and the jurisdiction's willingness to extradite the subject of the warrant if the
jurisdiction 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 for
processing. FPS law enforcement personnel shall not provide extradition transportation.

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7.4 Juveniles: Law enforcement personnel are responsible for the protection of federal property
and persons on the property. lfit is necessary to arrest ajuvenile, or an individual claiming
to be a juvenile, in order to protect federal property or persons on the property, law
enforcement personnel must immediately notify the United States Attorney and request
guidance.

Law enforcement personnel must advise ajuvenile of Miranda warnings in language

intelligible to the juvenile and take the juvenile before a judicial officer as soon as possible
and within a reasonable period of time. The arresting officer or agent must also notify the
parent, guardian, or custodian of the rights of the juvenile and of the nature of the alleged
offense.
See also, Title 18 U.S. C., Section 5031; Title 18 U.S.C., Section 5033; Title 9 United States
Attorneys' 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 a
foreign national, in order to protect federal property or persons on the property, law
enforcement personnel must immediately notify the United States Attorney and request
guidance. (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 to
protect federal property or persons on the property, law enforcement personnel must
immediately 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 of

Congress in order to protect federal property or persons on the property, law enforcement
personnel must immediately notify the United States Attorney and request guidance.

8 Citations for misdemeanor offenses and violation of regulations. Citations shall only be
issued for misdemeanor offenses and violation of regulations in accordance with established
guidelines approved by the United States Attorney's Office responsible for prosecuting
misdemeanor criminal offenses before a United States Magistrate in the district that the
offense or violation occurred. Regional Directors, or their designees, shall liaison with
representatives from each United States Attorney's Office within their region and establish
written guidelines for law enforcement personnel that are approved by the United States
Attorney'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 their
hands behind their back. [n addition to handcuffs, the use of flex -cuffs, waist chains, and leg
irons 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 the
individual whose personal effects or person are to be searched. Consent searches are legally
valid 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 exigent
circumstances. A detennination that exigent circumstances exist must be reasonable. The

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burden of proving exigency is on the officer or agent making the search. Exigency must be
based upon articulable and reasonable belief, must be reasonably applied, and must not be
fabricated. Law enforcement personnel may conduct a search based on exigent
circumstances 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 plain
view. The officer or agent must be lawfully in the place being searched, it must be
immediately apparent that the object seized is per se illegal and the officer or agent must
have 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 and
circumstances of each case. Such search may include a search of personal itcms carried by
the 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 under
arrest will occur at the nearest detention facility. Persons under arrest shall not be released to
another law enforcement agency without positive knowledge that the individual is not
concealing weapons or evidence. In the event that a person under arrest cannot be
thoroughly searched during the initial arrest process, law enforcement personnel must notify
the receiving law enforcement agency.

10.4.4 Law enforcement personnel may take possession of any objects found on a person at the time
of arrest and examine those objects as a means of conducting an inventory of the individual's
possessions.

10.5 Searching persons of the opposite gender: Law enforcement personnel may conduct a
search ofa person of the opposite gender if a person of the same gender is not immediately
available to conduct the search, or if a delay of the search would jeopardize safety. Law
enforcement personnel should make every reasonable effort to ensure an officer or agent of
the 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 be
released to another law enforcement agency, the person under arrest or their representative,
or anyone else without the approval of the District Commander or Threat Management
Branch Chief and the United States Attorney, if applicable. Law enforcement personnel
must keep in mind the chain of custody issues that may become relevant in the prosecutorial
phase of an arrest.

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J2 Custody. Law enforcement personnel are responsible for the protection and safety ofa
person under arrest until the individual makes the initial appearance before a magistrate
judge or been transferred to the custody of another law enforcement agency. Law
enforcement personnel shall query an electronic database, such as NCIC, to ensure that no
person under arrest is released from custody with an outstanding warrant.

12.1 Relationship with the United States Ma rsh als Service: The United States Marshals
Service is the agency responsible for the custody. care, and transportation of federal
offenders. The United States Marshals Service will not take custody of any person arrested
until the subject makes the initial appearance before the magistrate judge. If the magistrate is
not immediately available, the person under arrest will remain in a state or local detention or
holding facility that the United States Marshals Service has an agreement with to handle
federal arrests.

13 Medical treatmcnt.

13.1 Persons under arrest who sustain injuries while being taken into custody, or who at the time
of arrest is obviously suffering from some injury or illness, should have such matters
attended 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 they
make an initial appearance before a magistrate judge or have been transferred to the custody
of another law enforcement agency. This means the officer or agent may have to accompany
the person under arrest to the hospital or other location while the individual receives medical
treatment.

13.3 Unless specifically requested by medical authorities, persons under arrest in transit shall be
handcuffed behind their back in accordance with the provisions set forth in thi s policy.

13.4 Persons under arrest may have prescription drugs or medication in their possession. [fFPS
law enforcement personnel reasonably believe that a person under arrest needs medication or
requires medical attention. they should have such matters attended to by competent medical
authority without unnecessary delay.

13.5 If a person under arrest is injured, it is important to keep a record indicating the remedial
action taken and the corresponding times in the investigati ve tile.

13.6 Persons displaying behavior that, based on the officer's or agent' s training and experience, is
indicative of mental illness should be detained and turned over to local law enforcement for
involuntary commitment or contact local Emergency Medical Services. FPS law
enforcement personnel should abide by local laws pertaining to mentally ill persons, as well
as 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 to
interviewing 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 their
personal identification information in order to establish their true identity.

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14.3 Miranda warnings are not required when questions, including the location of weapons or
explosives and the identi ty of co-conspirators, are prompted by a concern fo r public safe ty
and 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 is

not 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.

MAR 2 3 2OIl6
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