E.P.P. 5 Arrest & Detention

I.             PURPOSE:

 

                The purpose of this directive is to establish police department policy and provide guidelines pertaining to lawful detention and custodial arrest by officers. General guidelines as well as special considerations in these areas are outlined. Additional enforcement directives, non-custodial arrest, discretion and diversion programs, and juvenile enforcement considerations may be found under those specific headings.   

 

 

II.            DEFINITIONS:

 

  1. Arrest warrant:

 

An arrest warrant is a court order issued by a judge upon a determination of probable cause.

 

  1. Capias:

 

Capias is an order for the arrest of a person that is issued after a case is formally filed by the state attorney’s office. 

 

  1. Physical arrest:

 

A physical arrest is the procedure through which an officer takes into actual physical custody and transports an offender to a correctional facility for the purpose of detention. 

 

  1. Probable cause:

 

Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief than an offense has been or is being committed… we deal with probabilities. They are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Draper v. U.S., 358 U.S. 307(1959)

 

Probable cause is a fluid concept- turning on the assessment of probabilities in particular factual contexts- not readily, or even usefully, reduced to a neat set of legal rules. Illinois v. Gates, 462 U.S. 213, 232 (1983)

 

Examples of probable cause include a computer hit confirming that a vehicle is stolen, victim and witness sworn statements, and the odor of marijuana coming from inside a car.

 

  1. Reasonable suspicion:

 

Circumstances which reasonably indicate that a violation of Florida laws or City of Longwood ordinances has been committed, is being committed or is about to be committed. 

 

 

III.           DETENTION AND SEARCH:

 

  1. The purpose of this chapter is to give enforcement personnel an overview in regard to the detention and search of an individual. Procedures that are to be followed when conducting the actual searches of an individual are described within the Enforcement Policy and Procedure “Search and Seizure”

 

  1. An officer may temporarily detain a person based on reasonable suspicion.

     
  2. The detention must last no longer than is reasonably necessary to confirm or dispel an officer’s reasonable suspicion that a crime has been, is, or is about to be committed. These detentions must end when the suspicion is dispelled. 

 

  1. In all instances of reasonable  suspicion detentions the officer will inform the individual:

 

  1. The nature or reason for the detention;

 

2. That he/she is not under arrest and will be duly advised of any status change as soon as the determination is made; and 

 

3. That he/he will be released as soon as practical to do so. 

 

4. If handcuffs or other restraints are used to secure the individual for officer safety reasons, the individual will be made aware of why the restraining device is being used and that the device will be removed as soon as practical to do so. 

 

  1. When placing an individual in investigative reasonable suspicion detention an officer may, in accordance with the Stop and Frisk Law; F.S.S. 901.151: 

 

  1. Perform a cursory search of the individual, if the officer reasonably believes that the individual detained is armed with a dangerous weapon. Said search is limited to a pat down of the outer clothing for weapons. If an object is felt which could reasonably be a weapon the officer may seize it. 

 

  1. Temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof and be no more intrusive than necessary. If there is a victim or witness to the offense for which the individual(s) is being detained, then those persons may be taken to the location of the detention to render any identification and the person detained may continue to be detained awaiting their arrival. 

 

  1. Under no circumstances will the officer return a suspect to a crime scene or location of an offense unless the person detained is placed under arrest or gives the officer consent to do so.

 

  1. Probable cause to arrest must exist before a person can be placed under arrest (excluding court orders). If probable cause cannot be determined, or reasonable period of time for detention has expired and the information requested from the person has been obtained, the person must be immediately released. 

 

  1. If an officer restrains an individual with handcuffs, or any other restraint device, and subsequently releases them without making an arrest or taking them into custody for other purposes, a CJIS report documenting the circumstances of detention, restraint, and release will be submitted. The application of agency authorized restraint devices alone will not require the completion of a Response to Resistance (R-2) Review.

     

IV.          ARREST (GENERAL): 

 

  1. An officer shall not use unnecessary force in making an arrest. Officers shall use only such force as is necessary to effect an arrest or other lawful objective. 

 

 

  1. Officers have a responsibility to remain knowledgeable as to the law that governs arrest, including when and how arrests can be lawfully made. Officers will remain knowledgeable as to special considerations that must be taken into account when handling juvenile offenders (see Enforcement Policy and Procedure “Juvenile Enforcement Considerations) 

 

  1. If an arrest is made outside the jurisdictional boundaries of Seminole County, the person arrested must be booked into the correctional facility of the county in which the arrest was made. A supervisor of the sheriff’s office of the county in which the arrest was made will be notified along with the arresting officer’s supervisor. 

 

  1. Laws and ordinances shall be enforced with equality and impartiality without regard to race, sex, religion, political affiliation, or social status.   

 

  1. Officers shall remain objective and professional in contacts with offenders; regardless of the nature of enforcement taken. 

 

  1. No person shall be arrested but upon probable cause or in direct compliance with a court order. 

 

 

V.          ARREST PROCEDURES (GENERAL): 

 

  1. Arrest information, criteria for reporting: 

 

  1. When a person is taken into physical custody, regardless of the offense committed, the arrest will be documented by the arresting officer. Documenting an arrest will consist of: 

 

  1. Completing an arrest report; and

 

  1. All corresponding documentation necessary to properly document the investigation. 

 

  1. Use of restraints: 

 

  1. The primary purpose in using handcuffs and other restraints is to: 

 

  1. Maintain control of an arrested person. 

 

  1. Provide safety for the officer, the arrestee and the general public.

 

2. Authorized restraints to be used by enforcement personnel consist of: 

 

  1. Double locking handcuffs. 

 

  1. Plastic handcuffs (flex cuffs). 

 

  1. Leg cuffs.

 

  1. Waist belt restraint.

 

  1. RIPP Hobble.

 

  1. Double locking handcuffs are issued and are to be carried by all enforcement personnel while in uniform. 

 

  1. All double locking handcuffs used shall be manufactured by Peerless, ASP, or Smith and Wesson and must be hinged or chain-steel cuffs; utilizing the same key as that issued to all enforcement personnel. 
  2. Enforcement personnel in plain-clothes assignment who manage prisoners shall carry handcuffs.

 

  1. All personnel issued handcuffs will be responsible for the efficient operation of their handcuffs. Handcuffs must be kept clean and lubricated to prevent malfunctions during emergency situations. 

 

2. Handcuffs will be the primary restraining device used in all cases involving arrest of adults and juveniles age twelve and older by enforcement personnel with the following exceptions: 

 

  1. Other authorized restraints may be employed if multiple arrests are involved and there are an insufficient number of handcuffs available. 

 

  1. In the event the arrested person is elderly, in advanced stages of pregnancy, physically disabled, or otherwise injured and the use of handcuffs or other restraint may cause or aggravate further injury; the arresting officer may elect not to restrain the individual, but only if the arrested person poses no escape risk or threat to himself/herself, the officer or to others. 

 

  1. Handcuffs or restraints will only be used on the body parts of physically disabled individuals that are not affected by the disability. 

 

3. Juveniles less than twelve years of age shall not be placed in handcuffs or other restraints unless they pose an escape risk or danger to themselves, the officer or others.   

 

4. When only handcuffs or other, authorized wrist restraints are used, officers will maintain physical control over the arrested person to prevent injury or escape. 

 

5. Generally, an arrested person will be restrained with their hands behind their back unless a physical disability or other condition or circumstance makes alternative restraining methods necessary.

 

  1. Officers of the same sex as the arrested person shall search that person and take immediate possession of all weapons, evidence and contraband. Officers arresting persons of the opposite sex shall conduct a pat-down search of outer garments and personal goods, but shall refrain from searching the person of the arrested person. Upon delivery to the correctional facility’s sally-port area, corrections personnel shall be advised by the arresting officer of the limited search and a corrections officer of the same sex as the arrested person shall conduct a more thorough search. 

 

  1. Officers receiving an arrested person from another officer shall be responsible for re-searching the arrested person.   

 

  1. Officers shall search the scene of an arrest for weapons or evidence that may have been concealed, dropped or thrown away by the arrested person. 

 

  1. Arrested persons shall be transported in accordance with written directives governing the transport of arrested persons. 

 

  1. Restraint use procedures:

 

  1. Handcuffs:          

 

  1. The officer will gain control of the individual’s hands utilizing sound officer safety techniques.

 

  1. Handcuffs will be placed on arrested persons as soon as they are under control.

 

  1.  All arrested persons shall be handcuffed prior to any search, except for the noted policy exceptions. 

 

  1. All arrested persons will have their wrists cuffed behind their back and double locked with palms turned outward to minimize the potential for escape.

 

  1. The officer will check the handcuffs for proper fit to ensure that escape is not possible (too loose) or no injuries are incurred (too tight). 

 

  1. Handcuffs will not be removed from arrested persons until the arrestee is in custody of correctional staff, at a law enforcement facility and necessary for investigative purposes or medically necessary and the officer believes there are no safety risks.

 

 

 

 

2. Flex cuffs:           

 

Note: Flex cuffs will only be used when issued handcuffs are not available or in the event of emergency or mass arrests. 

 

  1. The arrested person will have their hands placed behind their back. 

 

  1. The officer will gain control of the individual’s hands utilizing sound officer safety techniques.

     
  2. The officer will then place the flex cuffs on the individual’s wrists and latch them into place. 

 

  1. The officer will check the flex cuffs for proper fit to ensure that escape is not possible (too loose) or no injuries  are incurred (too tight) 

 

3. Leg cuffs:

 

Note:    Leg cuffs will only be used in those circumstances where the arrested person poses a control problem or escape threat to the officer. Leg cuffs shall not be used as a routine method of securing arrested persons. 

 

  1. Prior to placing the leg cuffs on any person, they should be handcuffed according to the procedures outlined above. 

 

  1. Once the individual is handcuffed, one officer will maintain control of the individual, while another officer places the leg cuffs on the ankles of the individual. The officer will then latch into place. 

 

  1. The officer will check the cuffs for proper fit to ensure that escape is not possible (too loose) or no injuries are incurred (too tight).

     

 

  1. The officer will then double lock the cuffs. 

 

4. Waist belt restraint:

 

Note: Waist belt restraints are to be used in conjunction with, and not in place of handcuffs. Waist belt restraint should be utilized if the arrested person poses a control problem or escape threat to the officer. The waist restraint belt can be utilized to prevent the arrested person from moving his/her hands from behind the back to the front, while handcuffed. 

 

  1. The individual; shall be handcuffed behind the back prior to fastening the waist restraint belt around their waist. 

 

  1. Once the individual is handcuffed, the belt should be installed with the silver D-ring being located in the center of the individual’s back. 

 

  1. A second set of handcuffs will be attached to the D-ring. (Typically the handcuffs will opened on one side and fed through the D-ring. This will not work with the hinge type handcuffs)

 

  1. Once secured to the D-ring, the second set of handcuffs will be placed on the individual’s wrist and the initial set will be removed.    

 

  1. The handcuffs will be checked for proper fit to ensure that escape is not possible (too loose) or no injuries are incurred (too tight). 

 

  1. The handcuffs shall be double locked. 

 

5. Rip Hobble:

 

Note:    The Rip Hobble will only be utilized by officers who have been properly trained in its use. The Rip Hobble shall never be used to “hog tie” or “suit case” a person. The hobble will only be used in a method consistent with the training provided to officers by the Longwood Police Department. 

 

The Rip Hobble shall be used in conjunction with and not in place of handcuffs. It is a tool, which is to be used to assist the officer with controlling a subject who is exhibiting violent or dangerous behavior while in handcuffs. 

 

The Rip Hobble shall be used in one of four ways:

 

TARP (Total appendage restraint position): 

 

  1. While subject is in a seated position, cross subject’s ankles, and place loop around the ankles. 

 

  1. Tighten the hobble loop and lock hobble clip in place. 

 

  1. Attach hobble snap to cuffs behind back with full extension of strap. Do not shorten strap. 

 

  1. The subject shall always be in an up-right, seated position and under constant officer observation.  

 

  1. Never allow subject to lay on side, stomach or chest. 

 

Restraining legs for walking:

 

  1. Place loop around both legs of the subject and bring the loop to the subject’s knees. 

 

  1. Tighten the loop around the legs, just above the knees. 

 

  1. Hold free end of hobble in one hand. 

 

  1. Hold subject’s elbow with your other hand (make sure your gun side is away from the subject). 

 

  1. Assist subject walking slowly. 

 

De-cuffing violent subjects: 

 

  1. Subject’s hands should be handcuffed behind back. Place loop around both arms and slide the loop till it is just above the subject’s elbow.

 

  1. Slowly pull arms together until you feel the subject cannot escape the loop. 

 

  1. Tie half hitch knot at clip. 

 

  1. Remove handcuffs with assist officer present.

 

  1. Remove hobble, pushing subject away slightly to increase reactionary gap. 

 

Rear seat application and transport: 

 

  1. Raise subject’s feet out door of vehicle, forcing them to lay back on seat. 

 

  1. Cross subject’s ankles, place the loop over the ankles and close the loop.

 

  1. Turn subject forward placing their feet in the floor board.

 

  1. Pull free end around door pillar and inside front door. Close rear door and secure the free end of the strap in the front passenger compartment. 

 

  1. If needed, the strap can be adjusted by one extra wrap around subject’s legs before pulling the free end outside the door. 

 

 

VI.        ARRESTS WITHOUT WARRANT:

 

  1. Arrests without a warrant may be made under certain circumstances by an officer and when probable cause exists to do so. Searches conducted under these circumstances are limited in scope and may only be conducted on the person being arrested and the area that was in the immediate control of the person prior to arrest, unless a search warrant was obtained that would expand the scope of the search. Searches incident to arrest may be conducted in order to: 

 

  1. Protect the officer; 

 

2. Prevent the person from escaping; 

 

3. Discover the evidence of the crime. 

 

  1. A warrantless arrest may be made by an officer if there is probable cause to believe that a felony has been or is being committed and the person to be arrested is the perpetrator of that felony. 

 

  1. Felony warrantless arrest in a residence (special considerations): 

 

It is necessary that one or more of the following circumstances exists before an arrest without a warrant may be made inside a residence:

 

  1. The arrest must be made immediately for the protection of any person, including the officer, and that the delay caused by obtaining a warrant will jeopardize the safety of innocent persons; 

 

2. The arrest must be made immediately to prevent the successful flight of the suspect; 

 

3. The arrest must be made pursuant to lawful entry to prevent the destruction of evidence; 

 

4. The arrest is made by the officer in fresh pursuit of a felony suspect (the officer has maintained visual contact with the suspect during the suspect’s flight to avoid arrest) and the delay caused in obtaining an arrest warrant will jeopardize the safety of innocent persons or allow the successful flight of the suspect; 

 

5. The arrest is made for felony committed in the officer’s presence in a residence to which the officer has already been lawfully admitted; 

 

 

6. The arrest is made after the officer has been lawfully admitted to the residence by consent of a person fifteen years of age or older and who appears to have the authority to allow admittance (i.e., the person lives there) and such consent was obtained without the use of deception or coercion; 

 

7. The arrest is made when the officer develops probable cause for an arrest after having already been legally admitted to the residence. 

 

  1. Ordinarily, if a crime is a misdemeanor or violation of a city ordinance, an officer may not make a warrantless arrest unless the misdemeanor or ordinance violation was committed in the officer’s presence. However, there are specified instances, as defined in Florida State Statutes, where an officer, with probable cause, may arrest a person on a misdemeanor without a warrant and without observing the crime occurring. 

 

  1. When making an arrest without a warrant, the officer should: 

 

  1. Verbally tell the person that he/she is under arrest and the reason why the individual has been placed under arrest; 

 

2. Properly handcuff and search the person; 

 

3. Advise the person of the charges; 

 

4. Advise the person of his/her constitutional rights (Miranda Warning) before beginning any questioning where the answers given could be self-incriminating;

 

5. Secure the scene for evidence and/or other considerations, if necessary;

 

6. Transport the person to the correctional facility for booking (or, if necessary, to some other location for further questioning), and release the person to corrections personnel;

 

7. Complete and submit the arrest report. 

 

  1. All offenders currently under state or county supervision, who commit a new law violation or in some instances violate a condition of their probation, shall be charged with violation of probation (VOP), in accordance with F.S.S. 948.06(1)

 

Note: The separate violation of probation (VOP) charge shall be completed under a different case number than the new law violation, so the original judge placing the offender on probation will receive the violation of probation (VOP) charge, rather than the arraignment judge hearing the new law violation.  

 

  1. Out of state VOP offender:

 

  1. At this writing, procedures for offenders who are supervised by a state, other than Florida, have not been established. In these instances, proceed accordingly with any new law violation and request a “no bond” status along with a 72 hour hold based on their out of state probation, to ensure that the offender is remanded in custody and allowing enough time for probation officers to conduct the necessary research into the case. 

2. State of Florida – Department of Corrections offender: 

 

  1. To determine whether or not an offender is under supervision by the State of Florida – Department of Corrections, a CAFÉ search and an FCIC query must be conducted. 

 

b. CAFÉ entries on all sexual offenders and predators registered with SCSO after January 1, 2004, and all other felons registered after August 25, 2004 will include the court ordered conditions of probation. 

 

c. The FCIC response will include two dates, a “start super” and “probation                                            expires”, to indicate when supervision began and when it will end, respectively. If the offender has violated one or more of the existing conditions of probation and/or the new law violation has occurred between these two established dates, the offender shall be charged with VOP and                                                placed on a “no bond” status, until his/her hearing at initial appearance.       

                

3. Seminole County Probation offender:    

 

  1. To establish whether or not an offender is under the supervision of Seminole County Probation, a CAFÉ search must be conducted.

 

b. A CAFÉ inquiry will reveal the offender’s current misdemeanor probation status and any conditions or sanctions specifically related to his/her probation status. 

 

c. All probationers under supervision by county probation are assigned a “county probation number” for their case number, and it is formatted as follows: 20xxCP00xxxx

 

d. The procedure for querying CAFÉ is as follows:

 

  1. Under agency ORI select county probation. This will limit the number of responses to only those cases supervised by Seminole County Probation. 

 

    2. Under people/business tab, enter last name and first name of offender. “Wild cards” may be used if the spelling of             the name is in doubt. 

 

    3. Select the desired case to view or edit. 

 

  1. When the case data appears on screen, select “probation” on the tree (upper left of screen), then the administration tab, client status box to see if the case is an active capacity, or has been terminated. 
  2. If the case is active, click on the conditions tab to review the probation conditions for that particular case.

 

  1. If it is determined that the offender is currently under the supervision of Seminole County Probation and he/she has committed a new law violation and/or violated one of the existing conditions of probation, the offender shall be charged with VOP and placed on a “no bond” status pending his/her initial appearance. A 72 hour hold should also be requested in the narrative. 

   

b. We recognize that unless self-reported by the offender and verified by the involved agency, it would be difficult to determine whether or not an offender is being supervised by a county probation office, other than Seminole County Probation.    

 

  1. Mandatory reciprocal communications between involved agencies: 

 

c. In all instances there must be reciprocal communications between the supervising agency and the arresting agency. The investigating officer is required to notify the supervising agency and the probation officer, if listed, of the arrest and related charges by email and/or facsimile. A probation 

notification form is available at the John E. Polk Correctional Facility.                

 

d. Seminole County Probation Officers should be contacted directly using their email addresses. The supervising officer’s identity may be learned by conducting a CAFÉ search. His/her full name will be located under the “probation” files, just above “tabs”. All county employees’ email addresses are listed as follows: first name initial (no punctuation), full last name @seminolecountyfl.gov  Example:jdoe@seminolecountyfl.gov

 

e. State of Florida Department of Corrections (DOC) may be contacted either by fax or email. The fax number for the DOC Sanford office is (407) 330-6924 A probation notification facsimile form is available at John E. Polk Correctional Facility. The DOC investigating officer may also be reached via email to DOC at harris.katherine@mail.dc.state.fl.us

 

  1. Arrest reports completed for the VOP must include the following additional information in the narrative:

                                

  1. Confirmation the subject’s probation is active.

     
  2. The conditions of probation which were violated. 

 

  1. The county where the probation was enacted.

 

 b. The original crime and criminal case number related to the probationary case. 

 

 

VII.       ARRESTS WITH WARRANT:

 

              The purpose of this chapter is to define the basic procedures for arresting persons for a               warrant. 

 

  1. Arrest of fugitives:

 

  1. Any suspect with a warrant should be treated with extreme caution. Arrests should not be made until the arrival of an assisting office, if possible.          

 

2. Upon stopping or detaining a suspect, an officer may request a warrants check from the telecommunications section upon receiving some form of identification from the suspect. 

 

3. The telecommunications section will be advised of the suspect’s name and date of birth or other information as may be applicable. The telecommunications section’s dispatcher handling the request should be told whether or not the officer is in actual contact with the suspect. 

 

4. If the telecommunications section ascertains that a warrant exists on the suspect; for the purpose of summoning an assisting officer they will transmit the following information across all radio channels: 

 

                                “Bravo two at Grant and Church; 

                                1043, 10-29P, signal (18 or 19)” 

 

                                Another officer will respond and assist the arresting officer with securing the subject. The telecommunications section                                      will not broadcast any warrant information until the officer has requested the information.  

 

  1. The arrest warrant or teletype should contain at least the following information:
  1. Subject’s name

 

  1. Subject’s date of birth or age

 

  1. Charge

 

  1. Date of warrant

 

  1. Warrant number

 

  1. Bond amount (if any)

 

  1. Judge’s name, court, and location of the issuing court

 

  1. Extradition considerations. 

 

2. If the warrant indicates the issuing court will not extradite the person the officer must release the person. 

 

3. The warrant will be confirmed with the entering agency, via dispatch, prior to the subject being arrested and transported to the correctional facility.       

 

4. After the suspect is arrested the officer shall:

 

  1. Verbally tell the person that he/she is under arrest and the reason why the individual has been placed under arrest;

 

  1. Search the person again, if necessary; 

 

  1. Advise the person of his/her constitutional rights (Miranda Warning) before beginning any questioning where the answers given could be self-incriminating; 

 

  1. Secure the scene for any evidence and/or other considerations, if necessary;

 

  1. Transport the person to the correctional facility and release the person to the corrections personnel;

 

  1. Complete and submit a detention affidavit as described below. 

 

5. Detention affidavit:

 

  1. Detention affidavits are to be completed on the computers provided at the John E. Polk Correctional Facility;                         NOTE: The arresting officer will enter only the information described above in   the “charge” and “narrative” sections. The arrested person will not be charged with the crime for which the warrant was issued.   

 

6. A copy of the teletype confirming the warrant will be obtained by the arresting officer and attached to the detention affidavit.           

 

7. Upon delivery of the person to the correctional facility, the arresting officer will notify corrections personnel that the person was arrested on a warrant. 

 

 

VIII.      ABSENTEE BOOKING:

 

              If a person has been placed under arrest but requires admission to a hospital before being booked at the correctional facility, the following absentee booking procedure will be followed: 

 

  1. If the person arrested is charged with a misdemeanor and meets the eligibility requirements, a Notice to Appear (summons) will be issued. 

 

  1. If the person arrested is charged with a felony, or is charged with a misdemeanor and is not eligible to be issued with a Notice to Appear (summons), the arresting officer will complete an arrest report as if the person was being booked at the correctional facility. 

 

  1. The narrative will state the circumstances necessitating the hospitalization and the name of the medical facility where the person arrested is being held. 

 

  1. The arresting officer will notify the medical facility’s officials that the patient is under arrest. 

 

  1. The supervisor of the arresting officer will notify the correctional facilities on-duty commander of the arrest so that a correctional officer may be furnished to take possession of the arrestee. 

 

  1. When relieved by corrections personnel, the arresting officer will deliver the arrest report to the correctional facility and turn the arrest package copies over to the reviewing supervisor for normal distribution. 

 

  1. The arrestee should be made to make every effort to be responsible for any and all medical bills they may incur.  

 

 

 

IX.         PRIVILEDGES AND IMMUNITIES:

 

  1. Diplomatic immunity:

 

  1. Diplomatic immunity, a principal of international law, is broadly defined as the freedom from local jurisdiction accorded to duly accredited diplomatic officers, their families and servants. Employees of a diplomatic mission are entitled to the same immunities under current U.S. law (22 U.S.C. 254 (a) et seq.) if they are not nationals of, or permanently resident in, the receiving country. 

 

2. Associated with this personal diplomatic immunity us the inviolability enjoyed by the premises of the mission of the sending state and the private residence of a diplomatic agent, his property, papers and correspondence. 

 

  1. Diplomatic officers:

                

  1. Ambassadors and ministers are the highest ranking diplomatic representatives of a foreign government. 

 

2. Other diplomatic titles are minister counselor, counselor, first secretary, second secretary, third secretary, and attaché. These officials are located either in Washington D.C. or New York City. Diplomatic officers, their families, official staff and servants who are not nationals of or permanently resident in the receiving country, are protected by unlimited immunity from arrest, detention, or prosecution with respect to any civil or criminal offense. No person thus protected shall be arrested or detained for any reason. 

 

  1. Consular officers:                     

                                

        Consular officers are consuls-general, deputy consuls-general, consuls and vice consuls. They are official representatives of foreign governments. Consular officers are required to be treated with due respect, and all appropriate steps are to be taken to prevent any attack on their person, freedom or dignity. They are entitled to limited immunities:

 

  1. Under prevailing international law and agreement, a foreign career consular officer is not liable for arrest or detention pending trial except in the case of a felony offense that would endanger public safety and pursuant to the decision by competent judicial authority. A consular officer’s immunity from criminal jurisdiction is limited to acts performed in the exercise of consular functions and is subject to court determination.                

 

2. Traffic citations do not constitute arrest. Consular officers may be issued traffic citations at the officer’s discretion. 

3. Consular archives and documents are inviolable at all times and wherever they may be found. The official correspondence of the consular post (all correspondence relating to the consular post and its functions), is also inviolable.  

 

  1. Honorary consuls:

 

                        Honorary consuls are appointed to perform functions generally performed by career consular officers. Honorary consuls are not entitled to personal immunity from civil and criminal jurisdiction, except when performing acts in the exercise of consular duties. 

 

  1. Confirmation of status:

                                

  1. Should it become necessary to confirm or clarify the status of an individual with respect to the level of immunity, contact should be made with the Office of Protocol at the State Department Command Center in Washington D.C. 

 

2. While such confirmation is being made, the individual in question should not be arrested, but detained under as discreet and tactical conditions as possible. 

 

3. Official instructions in regard to the person’s detention shall be followed by the officer without variation. 

 

  1. Arrest of foreign nationals – notification of officials: 

 

  1. When a citizen of a foreign nation is arrested in the United States, per the Vienna Convention on Consular Relations and/or other bilateral consular conventions, the arresting law enforcement agency is required to make notification of the arrest immediately or as soon as practical by adhering to the following procedures:

 

  1. Notify the nearest consul or official of that nation or, if this is unknown; 

 

  1. Notify the nation’s embassy in Washington D.C. or, if this is unknown; 

 

  1. During normal business hours contact the United States Department; or

 

  1. After normal business hours, notify a state judicial official who shall then try to accomplish (a) or (b) above. 

 

  1. This procedure is required only in the case of nations to which the United States extend diplomatic recognition. 

 

Mandatory notification countries are:

 


 

                                Algeria                                  Antigua and Barbuda                      Armenia

                                Azerbaijan                          Bahamas, The                                    Barbados

                                Belarus                                 Belize                                                    Brunei

                                Bulgaria                                China                                                     Costa Rica

                                Cyprus                                  Czech Republic                                  Dominica

                                Fiji                                          Gambia, The                                      Georgia

                                Ghana                                   Grenada                                              Guyana

                                Hong Kong                          Hungary                                               Jamaica

                                Kazakhstan                         Kiribati                                                  Kuwait

                                Kyrgyzstan                          Malaysia                                              Malta

                                Mauritius                             Moldova                                              Mongolia

                                Nigeria                                  Philippines                                          Poland

                                Romania                              Russia                                                   St Kitts and Nevis

                                St Lucia                                 St Vincent/Grenadines                  Seychelles

                                Sierra Leone                       Singapore                                            Slovakia

                                Tajikistan                             Tanzania                                              Tonga

                                Trinidad and Tobago       Tunisia                                                  Turkmenistan

                                Tuvalu                                   Ukraine                                                                United Kingdom

                                Uzbekistan                         Zambia                                                 Zimbabwe

 

  1. Steps to follow when a foreign national is arrested or detained regardless of their immigration status:

 

  1. Determine the foreign national’s country. Normally, this is the country on whose passport or other travel document the foreign national travels. 

 

  1. If the foreign national’s country is not  on the mandatory notification countries list: 

 

  1. Offer without delay to notify the foreign national’s consular officials of the arrest/detention by utilizing “statement 1” listed below. 

 

2. If the foreign national asks that the consular notification be given, notify the nearest consular officials of the foreign national’s country without delay. 

 

  1. If the foreign national’s country is on the list of mandatory notification countries:

 

  1. Notify that country’s nearest consular officials, without delay, of the arrest/detention in accordance with section IX (F) of this Enforcement Policy and Procedure. 
  2. Tell the foreign national that you are making this notification by utilizing “statement 2” listed below. 

 

  1. Keep a written record of the provision of notification and actions taken by attaching same to the arrest package forwarded to the records section. Also, document the provision of notification and actions taken in the narrative arrest report narrative. 

______________________________________________________________________________

 

Statement 1:

For all foreign nationals except those from list countries

 

As a non-U.S. citizen who is being arrested or detained, you are entitled to have us notify your country’s consular officers here in the United States of your situation. You are also entitled to communicate with your consular officers. A consular officer may be able to help you obtain legal representation, and may contact your family and visit you in detention, among other things. If you want us to notify your consular officers, you can request this notification now, or at any time in the future. Do you want us to notify your consular officers at this time?

 

Statement 2:

For foreign nationals from list countries: 

 

Because of your nationality, we are required to notify your country’s consular officers here in the United States that you have been arrested or detained. We will do this as soon as possible. In addition, you are entitled to communicate with your consular officers. You are required to accept their assistance, but your consular officers may be able to help you obtain legal representation, and may contact your family and visit you in detention, among other things. 

                                                                

 

  1. U.S. senators and U.S. representatives          

 

        United States senators and United States representatives shall in all cases, except “treason” “breach of the peace” and felony charges, be privileged from arrest during their attendance at the session of their respective houses and in going to and returning from the same. 

 

  1. U.S. mail drivers and public transit operators:

 

                        United States mail vehicle drivers and public transport operators who commit minor violation of the law will not be taken into custody, but issued a citation to appear in court. If an arrest is necessary due to the nature of the offense, the officer will notify the arrestee’s supervisor for approval to release the vehicle to competent authority at the scene. If practical, the subject may be accompanied to the nearest post office or public transit depot to leave the vehicle. 

SUMMARY OF DIPLOMATIC AND CONSULAR PRIVILEGES AND IMMUNITIES

 

 

DIPLOMATIC

 

CATEGORY

May be arrested or detained

Search of residence to include hotel

Search of automobile

May be issued a traffic citation

May be arrested for DUI

Family members

DIPLOMATIC AGENT

NO 

NO

NO

YES

 

May not be compelled to sign citation or arrested for failure to sign.

NO

YOU MAY NOT

 

1. Compel submission to sobriety test.

 

2. Physically restrain unless he’s a danger to himself or others.

 

3. Search or seize the vehicle he’s driving.

 

4. Impound or boot the vehicle.  

 

FULL

IMMUNITY

MEMBERS OF DIPLOMATIC ADMIN AND TECH STAFF

NO 

NO

NO

YES

 

May not be compelled to sign citation or arrested for failure to sign.

NO

YOU MAY NOT

 

1. Compel submission to sobriety test.

 

2. Physically restrain unless he’s a danger to himself or others.

 

3. Search or seize the vehicle he’s driving.

 

4. Impound or boot the vehicle.  

 

FULL IMMUNITY

 

SERVICE  STAFF

 

YES 

YES

YES

YES

YES

NO IMMUNITY

 

CONSULAR

 

 

CATEGORY

May be arrested or detained

Search of residence to include hotel

Search of   Automobile

May be issued a traffic citation

May be arrested for DUI

Family members

 

CAREER CONSULAR OFFICIALS

YES 

YES 

NO

YES

 

May not be compelled to sign citation or arrested for failure to sign.

 

NO

YOU MAY NOT

 

1. Compel submission to sobriety.

 

2. Physically restrain unless he’s a danger to himself or others.

 

3. Search or seize the vehicle he’s driving.

 

4. Impound or boot the vehicle.

 

NO IMMUNITY

 

HONORARY CONSULAR OFFICIALS

YES

YES

YES

YES

NO 

YOU MAY 

 

1. Transport to DUI testing facility, where he can recover.

 

2. Call a friend or relative to pick him up.

 

3. Call a taxi.

 

4. Take him home. 

NO IMMUNITY

 

CONSULAR EMPLOYEES

 

YES 

YES

YES

YES

YES

NO IMMUNITY