Excerpts from Law Course for Customs and Border Protection Officers (13th

Edition 2004)

5.100 Customs Officers’ Arrest Authority

Subsec.
5.110 With a Federal Warrant
5.120 Without a Federal Warrant
5.130 Arrests Under State Law
5.140 Arrests Based on Treasury Enforcement Communications System (TECS) Or National
Crime Information Center (NCIC) Hits
5.150 Customs Officers Rendering Assistance Across the Border at the Request of Foreign Law
Enforcement

5.110 With A Federal Warrant

The authority for Customs officers to arrest for federal offenses with or without a warrant
is contained in 19 U.S.C. § 1589a. 19 U.S.C. § 1589a(2) grants Customs officers the
authority to execute any federal arrest warrant for any federal crime. It contains no
authority to arrest under a state felony or misdemeanor warrant.

5.120 Without A Federal Warrant

Customs officers are authorized by 19 U.S.C. § 1589a(3) to make arrests without

warrants for any federal offense committed in the officer’s presence or any federal felony
committed outside of the officer’s presence. In all cases, of course, the officer must have
reasonable grounds to believe, i.e., probable cause, that the person to be arrested has
committed or is committing a crime.

5.130 Arrests Under State Law

Subsec.
5.131 Peace Officer Status
5.132 Private Persons (Citizen) Arrest Authority
5.133 Warrantless Arrests under the Uniform Criminal Extradition Act
5.134 Warrantless Arrests under Special Arrest Authority Granted to Customs Officers in Some
States

There are four mechanisms by which a given state may empower a Customs officer to
make arrests for state violations.

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5.131 Peace Officer Status

Each state determines who is a peace officer and what authority its peace officers will
have. Generally, the term includes sheriffs and their deputies, constables, marshals,
members of the police force of cities, and other officers whose duty is to enforce and
preserve the public peace.

As a general rule, a peace officer can arrest for a felony if he has probable cause to
believe that a felony has been committed and probable cause to believe the suspect
committed the felony. He can arrest for misdemeanors committed in his presence. Most
states do not confer peace officer status on Customs officers.

Section 5.800 sets forth the law in each state as best as it can be determined. Please
contact your Associate/Assistant Chief Counsel for further information.

5.132 Private Person (Citizen) Arrest Authority

In most states, a private citizen is privileged to make an arrest for a felony committed in
his presence. A fewer number of states extend the privilege to breaches of the peace
whether or not a felony. Fewer yet authorize arrests for felonies not committed in one’s
presence if there is probable cause to believe that the person to be arrested committed the
felony. Note that unlike an officer’s authority to arrest on probable cause that a felony has
been committed, the general rule for a citizen’s arrest is that the felony must have
occurred in fact: probable cause is sufficient only for the person believed to have
committed it. Other states authorize “not in presence” arrests only when the felony was
committed in fact and the person to be arrested in fact committed it.

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5.133 Warrantless Arrests under the Uniform Criminal Extradition Act

A considerable number of model laws have been approved by the National Conference of
Commissioners on Uniform State Laws, and many of them have been adopted by the
states. The Uniform Criminal Extradition Act is such a law.

Extradition is the surrender of a fugitive from justice or a prisoner by one state to another.

Section 14 of that uniform law reads:

The arrest of a person may be lawfully made also by any peace officer or a
private person, without a warrant upon reasonable information that the accused
stands charged in the courts of a state with a crime punishable by death or
imprisonment for a term exceeding one year, but when so arrested the accused
must be taken before a judge or magistrate with all practicable speed and
complaint must be made against him under oath setting forth the ground for the
arrest as in the preceding section; and thereafter his answer shall be heard as if
he had been arrested on a warrant.

If the state in which the arrest is made has adopted this law, and this section as quoted, a
Customs officer, as either a peace officer or a private citizen, could arrest any person
charged by another state with a felony. Some states have not adopted this law and others,
such as California, have limited the authority to peace officers.

See § 5.800 for your state and consult with your Associate/Assistant Chief Counsel for
specific advice on the use of this statute.

5.134 Warrantless Arrests under Special Arrest Authority Granted to Customs

Officers in Some States

Some states have granted limited arrest authority to Customs officers that differs from the
authority the state may have granted to peace officers. Examples are California, Florida,
New Jersey, and New York. See § 5.800 or consult with your Associate/Assistant Chief
Counsel.

If a Customs officer, acting “under the color of state law,” deprives an individual of any
of the rights, privileges or immunities secured to him by the Constitution and laws of the
United States, that officer could be subject to a civil rights suit under 42 U.S.C. § 1983.
However, in such a situation the officer does have a defense to such a suit if he can show
he acted reasonably and in good faith and with probable cause.

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5.140 Arrests Based On Treasury Enforcement Communications System (TECS)
Or National Crime Information Center (NCIC) Hits

Subsec.
5.141 Outstanding Federal Warrant
5.142 Outstanding State Warrants
5.143 NCIC Missing Person’s File

5.141 Outstanding Federal Warrant

The authority to arrest for federal offense is 19 U.S.C. § 1589a. The officer should ensure
that the warrant is still valid and that the person to be arrested is the person specified in
the warrant. The officer need not have the warrant in his possession at the time of the
arrest, but upon request he is required to show the warrant to the suspect as soon as
possible. If the officer does not have the warrant in his possession at the time of the
arrest, he should inform the suspect of the offense charged and of the fact that a warrant
has been issued. 1

5.142 Outstanding State Warrants

No federal statute authorizes a Customs officer to make an arrest based on outstanding

state warrants. Generally, Customs officers making such an arrest would be doing so as a
peace officer or private citizen depending on the laws of the state in which the arrest is
made. An exception would be 18 U.S.C. § 1073, Unauthorized Flight to Avoid
Prosecution (UFAP) where the person to be arrested is in a state other than the one in
which the warrant was issued. In such a case, or in all cases where the fugitive is crossing
the border, there is probable cause to believe that the fugitive left the issuing state to
avoid prosecution and is therefore subject to arrest pursuant to the UFAP statute.

5.143 NCIC Missing Person’s File

Customs officers have no authority to detain a missing person for that reason alone.
Although, Customs officers have the authority to detain all persons coming into the
United States from foreign countries pursuant to 19 U.S.C. § 1582, that authority is for
the purpose of enforcing the Customs and related laws. Detention of a missing person
pursuant to the NCIC entry would not be incidental to a Customs purpose and, therefore,
would exceed the authority of Customs officers.

Although Customs has no legal responsibility to perform any specific action regarding
missing persons, Customs could appropriately notify the proper law enforcement
authorities.

Special consideration should be given to young children, mentally disturbed persons, etc.
In these unique situations, seek the advice of local authorities and/or Associate/Assistant
Chief Counsel before releasing the person.

1
FED. R. CRIM. P. 4(d)(3).

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5.150 Customs Officers Rendering Assistance Across The Border At The Request
Of Foreign Law Enforcement

No law or regulation specifically authorizes Customs officers to render assistance to

foreign law enforcement officers outside the United States. On the other hand, 22 U.S.C.
§ 2291(c), known as the Mansfield Amendment, specifically bars a United States officer
or employee from directly effecting “an arrest in any foreign country as part of any
foreign police action with respect to narcotics control efforts.” The legislative history of
this act provides that arrest action means “any police action, which under normal
circumstances would involve the arrest of individuals whether or not arrests, in fact, are
actually made.” Nevertheless, the statute outlines four exceptions to this prohibition
pertinent to Customs officers.

With approval of the United States chief of mission, a United States officer or employee
may be present during and/or assist foreign officers in effecting an arrest where there is
an agreement to that effect with the foreign country involved. Any such agreement must
be between the Secretary of State and the foreign government and must be reported to
Congress. 2

A United States officer or employee, faced with an exigent or threatening circumstance,

is not barred from acting to protect life or safety as long as the event is unanticipated and
poses an immediate threat to a United States officer or employee, a foreign government
officer or employee, or members of the public. 3

The statute permits maritime law enforcement operations in the territorial sea or
archipelagic waters of a foreign country provided the officer obtains permission from that
country. 4

In all events, §2291(c)(5) prohibits United States officers or employees from

interrogating or being present during the interrogation of a United States person arrested
in a foreign country, unless the arrested individual gives written consent authorizing such
action.

Many uncertainties are involved in conducting activities on foreign soil. Absent statutory
authority and /or supervisory direction, such acts might not be deemed as within the
scope of employment and the officer may be denied Department of Justice representation
in the event of a lawsuit resulting from these activities. In addition, if the officer might be
deemed to not be in the performance of official duty, he would not be entitled to
compensation in the event of disability or death resulting from the assistance. Also, the
Federal Tort Claim Act does not apply in foreign countries. Finally, the foreign country’s
laws could make it illegal for the Customs officer to perform certain functions (e.g.,
investigation, arrests, etc.) without prior approval from the foreign government.

2
22 U.S.C. § 2291(c)(2).
3
22 U.S.C. § 2291(c)(3).
4
22 U.S.C. § 2291(c)(4).

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17.212 Customs Officers Responding to State Crimes

Subsec.
17.212a State Felony Warrant
17.212b Serious Violent Crime

Virtually all states authorize its citizens to make arrests for felonies committed in the
citizen’s presence. See Chapter Five, Arrest Authority and Related Issues. Whether such
an arrest, albeit lawful under State law, will be deemed to be within a Customs officer’s
scope of employment is a different question. Current policy limits the circumstances
under which lawful responses to state crimes will be regarded as being within the scope
of the officer’s federal employment. In this regard, it must be clearly understood that this
policy does not prohibit lawful responses by the Customs officer in circumstances not
regarded as being within scope of employment. To the contrary, Customs officers, as
private citizens, may respond to an incident in any manner that law, skill and sound
judgment permit. The policy, simply, recognizes the fact that some responses to state
crimes are so closely allied with an officer’s federal duties that they should be embraced
within the notion of scope of employment.

It must also be clearly understood that any use of a Customs-issued firearm, whether or
not the particular response is “within scope,” must comply with all firearms and use of
force policies issued by Customs and/or the Department of the Treasury. It may be, for
example, that although an officer’s response is perfectly lawful as a matter of state law,
the officer may be subject to discipline if the employment of his Customs-issued firearm
in that response violates Customs policies governing the use of the firearm.

In view of the foregoing, officers in an off-duty status may wish to consider whether it is
best to carry a Customs-issued firearm or, where permitted by state law, a personally
owned firearm. This is a personal decision solely within the purview of individual
discretion. The question of scope of employment, however, arises only with respect to
the officer who is properly armed in accordance with Customs policy. The following
discussion, therefore, applies only to officers armed with a Customs-issued or authorized
firearm.

For purposes of this discussion, the term “Customs officer” means an officer who is in
uniform or in possession of Customs credentials and is carrying a firearm pursuant to
Customs policy at the time of the response. 5 Such officers responding to state crimes
will be considered as acting within the scope of their employment in the following
circumstances:

5
CUSTOMS DIRECTIVE, Customs Officers Responding to State Crimes, No. 4510-016A,
February 23, 2000.

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17.212a State Felony Warrant

Customs officers at the border, FEB, or extended border are authorized to arrest
individuals wanted on state felony warrants. 6

When a Customs officer reasonably suspects that a person subject to a border inspection
is also the subject of a State felony warrant, the officer may detain the person pending
confirmation of the warrant and the person’s identity. The TECS II record provides the
officer with sufficient reason to suspect that a violation of 18 U.S.C. § 1073,
Unauthorized Flight to Avoid Prosecution (UFAP) has occurred. Once the validity of the
warrant has been established and that the person is likely the one wanted, probable cause
exists for an arrest pursuant to the UFAP statute.

As in all cases involving a Terry detention (brief, investigatory inquiry), the officer must
exercise due diligence in proceeding to confirm or dispel the suspicion. In that regard,
Customs policy requires that the officer expeditiously confirm the identity of the suspect,
the validity of the warrant, and determine if the issuing jurisdiction is willing to pursue
extradition. 7 If so, the suspect is to be turned over to local authorities pending extradition
to the issuing jurisdiction (extradition is a process between the states which does not
involve the federal government).

If, however, the local authorities are unwilling or unable to accept custody of the arrestee
pending extradition, and the issuing jurisdiction nonetheless wants him, a different
procedure must be utilized. In this case, the Customs officer should contact the duty
assistant United States attorney in the federal district in which the entity issuing the
warrant lies, to determine if he will authorize a UFAP complaint.

If an AUSA for the issuing jurisdiction is unavailable or unwilling to authorize a UFAP

complaint, the local AUSA (i.e., place of arrest) should be contacted. In either event, if
UFAP is authorized, the arrestee will be placed into the custody of the local U.S.
Marshal, just as with any other federal arrest.

Customs policy does not permit arrests for state misdemeanors or alimony warrants.
Subjects of such warrants may be held for local authorities only upon request of the local
authorities and only to the extent necessary to expeditiously remand custody to such
authorities. 8

6
Id. § at 6.4.1.
7
Id. at § 6.1.2; Chapter 10, Arrest, Personal Search Handbook, CIS HB 3300-04A August 2001.
8
CUSTOMS DIRECTIVE, Customs Officers Responding to State Crimes, No. 4510-016A,
February 23, 2000 at § 6.4.1.3.

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17.212b Serious Violent Crime

Subsec.
17.212b(1) Office of Field Operations Personnel
17.212b(2) OI and AMID Personnel

A “serious violent crime” is defined by policy as conduct that poses a threat of imminent
death or great bodily harm to another. 9

Again, although the arrest or attempted arrest of a person posing such a threat may be
perfectly lawful under state laws, policy limits the extent to which such an arrest will be
deemed to be within the scope of Customs employment.

17.212b(1) Office of Field Operations Personnel

An OFO Customs officer who acts reasonably to arrest a person engaged in a serious
violent crime will be regarded as within the scope of his employment if the arrest occurs
at the border, FEB or extended border while on duty.10 However, if the officer or another
law enforcement officer is the potential victim of the threat, then the reasonable
interdiction by the Customs officer will be regarded as within the scope of employment
whether he is on-duty or off-duty, at the port or away from it. 11

17.212b(2) OI and AMID Personnel

Customs officers in OI and AMID who, pursuant to state law, act reasonably to interdict
a person engaged in a serious violent crime anywhere will be regarded as within the
scope of their employment. 12 Moreover, a reasonable response to a state or local
officer’s request for assistance in the performance of his duties, likewise, will be deemed
to be within the officer’s scope of employment.

9
Id. at § 4.
10
Id. at § 6.2.2.1.
11
Id. at § 6.3.2; Acting Assistant Commissioner, OFO, memorandum ENF-3-FO:RDT, of March
3, 2000.
12
CUSTOMS DIRECTIVE, No. 4510-016A, supra note 8, § 6.2.1.

ICE.090410.000203