OPSEC — I Hate CBT's (2024)

2) Understanding that protection of sensitive unclassified information is:

The responsibility of only the OPSEC Program Managers

***** The responsibility of all persons, including civilians and contractors

The responsibility of Contractors

The responsibility of Military members

The responsibility of Military and Government Civilians

5) OPSEC is concerned with:
The daily administrative activities associated with military operations.

Identifying and controlling classified information.
Identifying and controlling classified and unclassified information.
Controlling the operations of daily activities.

****** Identifying, controlling, and protecting unclassified information that is associated with specific military operations and activities.

7) Where is the CIL located?
In the EUCOM J2/Intelligence Directorate.
On the EUCOM NIPR and SIPR homepages and accessed via the OPSEC ICON.
On the wall of the EUCOM J3/Joint Operations Center.
On both the NIPR and SIPR desktops via the OPSEC ICON
******** On NIRP and SIPR desktops and on the EUCOM NIPR and SIPR homepages and accessed via the OPSEC ICON.
________________________________________
8) What is the CIL?
None of the answers are correct.

The Consolidated Intelligence Listing.

The Center for Information at Langley.

The Classification of Intelligence List.

****** The Critical Information List.

________________________________________
________________________________________
10) OPSEC countermeasures can be used to:
Assist in the development of daily support to secure all unclassified information.

***** Prevent the adversary from detecting an indicator and from exploiting a vulnerability.

Prevent the adversary from detecting an indicator.
Assist in the identification of OPSEC vulnerabilities.

Prevent the adversary from exploiting a vulnerability.

11) OPSEC is:
A COMSEC function and not a security function.
****** An operations function, not a security function.
A security function not an operations function.
None of the answers are correct.

All of the answers are correct.

________________________________________
12) The Joint COMSEC Monitoring Activity provides OPSEC assistance by:
****** Monitoring unclassified government telephones and monitoring NIPR email traffic.

Monitoring communications only for specific named operations.

Monitoring unclassified government telephones.

Monitoring NIPR email traffic.

Monitoring of COMMAND SECURITY (COMSEC) processes and procedures.

13) Operations Security (OPSEC) defines Critical Information as:

Classified information critical to the development of operational plans.

Information needed by NATO forces in order to coordinate coalition and multinational operations.

Classified information critical to the development of all military activities

All answers are correct.

****** Specific facts about friendly intentions, capabilities, and activities needed by adversaries to plan and act effectively against friendly mission accomplishment.

________________________________________

2) The purpose of OPSEC is to:

Inform all members of the military the dangers associated with improper handling of operational plans.
Increase the amount of time required to develop a CONOP or standing plan.
Prevent the adversary from gaining access to classified information.

****** Reduce the vulnerability of US and multinational forces from successful adversary exploitation of critical information.
All answers apply.

1. OPSEC is : A process that is a systematic method used to identify , control and protect critical information.
2. OPSEC''S most important characteristic is that: IT IS A PROCESS
3. OPSEC Planning should focus on: IDENTIFYING AND PROTECTING CRITICAL INFORMATION
4. OPSEC is: AN OPERATIONS FUNCTION, NOT A SECURITY FUNCTION
5. OPSEC is concerned with: IDENTIFYING, CONTROLLING AND PROTECTING UNCLASSIFIED INFORMATION THAT IS ASSOCIATED WITH SPECIFIC
MILITARY OPERATIONS AND ACTIVITIES
6. A vulnerability exists when: THE ADVERSARY IS CAPABLE OF COLLECTING CRITICAL INFORMATION, CORRECTLY ANALYZING IT AND THEN TAKING
TIMELY ACTION
7. Where is the CIL located:
8. All EUCOM personnel must know the difference between: OPSEC AND TRADITIONAL SECURITY
9. OPSEC as a capability of Information Operations: DENIES THE ADVERSARY THE INFORMATION NEEDED TO CORRECTLY ASSESS FRIENDLY
CAPABILITIES AND INTENTIONS.
10. OPSEC countermeasures can be used to: PREVENT THE ADVERSARY FROM DETECTING AN INDICATOR AND FROM EXPLOITING A VULNERABILITY.

What is the condition achieved from the denial of critical information to the adversary?

Essential Security

OPSEC

Operations Security

What does OODA stand for?

Observe, Orient, Decide and Act

What document/regulation created OPSEC

NSDD 298 passed in 1988 by President Ronald Regan

What are the four core features of the OPSEC program

Written appointment orders, 5 step process , Completed SOP with CIL list (unclassified) , Coordination of traditional and OPSEC programs

What are the five characteristics of indicators

Signature, Profile, Association, Contrast , Exposure

What factor is OPSEC driven by?

Threat

What are the categories of OPSEC measures

Action control , Countermeasures , Counteranalysis

Essential secrecy is required to maintain the element of _________

Surprise

What are the categories of threats?

Intelligence, Foreign/Domestic, Traditional/Non-Traditional, Combination of the above

What are the five main methods of Intelligence Collection?

HUMINT, OSINT, MAISNT, SIGNIT, GEOINT

What condition exists when an adversary can and does conduct OODA effectively against a unit/organization?

Vulnerability

Shred and Burn is an example of what OPSEC measure?

Action Control

What two things must there be for a threat to exist?

Intent and Capability

Information that is important to the mission is called_________

Critical information

Essential Secrecy is a combination of ______

Traditional and OPSEC programs

Controlled unclassified information is a form of ________

Critical info

What AR covers OPSEC

AR 530-1

True or False; Intelligence Collection is a random effort?

False

What is recommended for the widest dissemination of OPSEC Information and plans?

Unclassified CIL

What is CALI?

Capabilities, Activities, Limitations, Intentions

Disclosure of critical information is known as what?

OPSEC Compromise

Data derived from open sources or from detectable actions that adversaries can piece together to reach conclusions on friendly activities, capabilities and actions is known as what?

Indicators

Who decides how much risk to accept?

The Commander

What does RAM stand for?

Random anti-terrorism measure

IIA is the title of what Army Pub?

FM 3-13

________ Effectiveness comes in large part in changing daily routine?

RAM's

Each Sap will have a written OPSEC program from _____ to _______

Conception to Disestablishment

OPSEC can conflict with other elements of IO?

True

Each _______will have a full time Security Manager

SAP

What is the probability that an adversary will compromise critical info and impact if they are successful

Risk

MCTL stands for what?

Military Critical Technologies List

MEVA is defined as?

Mission Essential Vulnerable Area

Manufacturing know how, technical data, Keystone manufacturing are examples of?

Technology transfer restricted items

Who decides what risk to take

The commander

FOUO, LES, SBU, DEA, LIMDIN etc are caveats for what?

Controlled unclassified information (CUI)

What is the Risk Equation?

Impact x(threat x vulnerability) =r

_____ is defined as the risk left over after measures are put in place

Residual Risk

OPSEC is what kind of IO element?

Defensive (it can be offensive )

OPSEC measures are drawn from which areas?

Any Discipline

What does APP stand for?

Army Protection Program

How many FOIA exemptions exist?

Nine

What is referred to as the global domain?

Cyberspace

In Force Protection there are two phases, in which phase does OPSEC work best? (APP linked)

Proactive

When looking at Risk, which method achieves an acceptable level of risk at an acceptable level of cost?

Risk Management

What is the art of persuading someone to give up info?

Social Engineering

What are the two classes of designation of technology?

Existing and Proposed

80% of terrorist collection is through open source method

True (Manchester doc)

What is the disclosure of critical or sensitive info that jeopardizes mission and personnel etc?

OPSEC Compromise

Who decides which measures to implement and when?

The Commander

Opsec docs should be updated

Annually

Two types of Opsec assessments

Requested and directed

_________should be conducted with on the spot corrections

Self assessments

Joint Opsec docs/ formats are stated and required by what guidance ?

Cjcsm 3213 and JOPES II

Opsec in contracts matter

Almost all units need contractors. Allows for guidance etc

OPSEC ASSESSMENTS ARE CONDUCTED TO DETERMINE

Posture and compliance

In contracting, what doc outlines Opsec req

DD254

Minimum Opsec training req

Initial, annually, pre and post deployment

Opsec review is a formal process T/ F

True

Purpose of Opsec reviews are to ?

technically correct evaluation etc

PAO clearances are the same as OPSEC clearances . True or false

False

OPSEC Level II

Operations Security

What does OPSEC stand for?

5 Step OPSEC Process

Critical Info; Threat; Vulnerability; Risk and Apply OPSEC measures (mitigation)

2 base components of Essential Secrecy

Traditional Security and Operations Security (OPSEC)

A category of OPSEC indicators is?

SPACE (signature; profile; association; contrast and exposure)

Good characteristics of a good CIL

Unclassified; 10 items or less; widest dissemination

Why conduct an OPSEC review?

Evaluate compliance to regulatory guidance, prevent potential release of critical information; to evaluate a product or document with new eyes

What is CALI?

Capabilities, Activities, Limitations, and Intentions

What is RISK?

The probability that an adversary will compromise your Critical Information and the resulting impact if successful

In order to have a threat, you must have what two components?

Intent and capability

What is VULNERABILITY?

It is the action of an adversary after careful observation, and positioning in order to plan to effectively act against a friendly organization

What is the regulation for SAP?

AR 380-381

What is the Army Regulation for OPSEC?

AR 530-1

When did Regan sign NSDD 298?

1988

Simple version of the OPSEC 5 step process

1. problem, 2. it could get worse, 3. damage, 4. timing (odds of it getting worse), 5. mitigation...

Essential Secrecy is?

The condition achieved from denial of critical information to adversaries through the combined efforts of:
a.) Traditional Security programs and
b.) the Operations Security process...

Essential Secrecy is?

A two-pronged approached, managing National requirements at the Strategic; Operational, and Tactical levels...

CALI maintains our "Element of Surprise" by?

Denying enemies information... It is a key part of Essential Secrecy

Who owns the OPSEC program...?

The Commander

Who determines what will and will not be protected?

The Commander

What is a key responsibility/duty of the OPSEC officer?

To support the Commander

Other responsibilities/duties of the OPSEC officer include?

1. Producing Official Policy Letter
2. Coordinating functions within a Working Group
3. Publishing an OPSEC SOP
4. Interagency Integration
5. Develop a CIL
6. Publish an Annual Report
7. Conduct/Promote OPSEC Training and Awareness
8. Conduct OPSEC Reviews
9. Take part in self/external program Assessments

Critical Information comes from?

1. Protected Sources
2. Open Sources
3. Detectible Actions
NOTE: Intelligence Collection is not a Random Effort

All OPSEC measures are implemented to?

Protect Critical Information

Critical Information may be____________ or ____________ sensitive.

"Time" or "Event"

What is Threat driven?

OPSEC... Threat = Intent + Capability

What are some of the traditional Collection Methods?

HUMINT; SIGINT; GEOINT; OSINT and MASINT

Two types of HUMINT collection are?

Overt and Covert

Foreign Intelligence Services employ the following HUMINT methods?

1. Recruiting (R)
2. Elicitation (E)
3. Planting (P)

Thinking like an Adversary collecting Critical Information UNDERSTAND and REMEMBER that...

Collection is "not" a Random Effort

Levels of Vulnerabilities exist at the?

1. Strategic Level, (S)
2. Operational Level, and the (O)
3. Tactical Level (T)

Adversary analysts develop perceptions by?

1. Piecing the Indicators Together
2. Conducting a Comparative Analysis identifying Trends
3. Report Observations for Review Cand await Guidance

3 Categories of OPSEC Measures include?

1. Action Control (A)
2. Countermeasures (C)
3. Counter Analysis (C)

Action Control measures are?

Means of Mitigation, to include TRAINING...

Countermeasures can look like?

Signal Jamming

Counter analysis can look like?

Use of Deceptions / Decoys and False leads...

A form of Risk Management is a Table Top Exercise, why is this employed?

It helps leaders learn to make informed decisions regarding available courses of action.

What is the OPSEC definition of Risk?

The "probability" an adversary will compromise Critical Information and the "impact" is the severity of the damage taken when they are successful

What does R = I x ( T x V ) mean?

Risk equals Impact x threat x vulnerability

What is the current risk without OPSEC measures

Failure

FOIA is?

A public record. ANY official writing or recording.

How many FOIA exemptions are there?

(9) Nine

OPSEC Review supports a responsible release of records tagged under?

FOIA documents requests...

DD Form 254

Classified / Uncalssified Contract Review...

PAO is NOT the same as an?

OPSEC Review

How many Functional Elements are there?

(2) Two -- Warfighter & Non Warfighter

What is the purpose / possible uses for OPSEC Working Groups?

1. Awareness for the Cmd
2. Review Websites
3. Review Contracts

OPSEC Measures are?

The Cmdrs option

OPSEC Measures are?

Directive in nature

Risk Management?

Helps leaders make informed decisions regarding course of action

Probability is referred to as?

Hazard

Impact is referred to as?

Severity

Cyberspace is?

A global domain within the information environment

Cyberspace Operations consist if (3) three functions

1. Offensive cyber ops
2. Defensive cyber ops
3. DoD info network ops

What are some Types of cyber threats

1. FIS
2. Cyber Terrorist
3.. Criminals
4. Insiders
5. Hackers

Social Media uses are

1. Official
2. Professional
3. Personal

Critical Program Information ( CPI )

1. DoD 5230.25
2. DoD 5230.24

Security and OPSEC

Revoking

DoN Central Adjudification Facility - Lost clearance completely

Suspended

CO - 10 days

SF-86

Form to initiate or renew a clearance

Visitor's Request

Through JPAS

Spillage

Classified info put on NIPR

How often do you change your password

90 days

JPAS

Joint Personnel Adjudication System

DoD CAF

Department of Defense Central Adjudication Facility

Sanitize

Lock workstations; Cover Classified Info; Put material away; Stop Convo; Announce Visitor

ATFP

Anti-terrorism; Force Protection - Detect/Recover

FVEY

Releasing designator that tells which countries may view the info

RAM

Random Antiterrorism Measures

Emergency Destruct

CO may initiate emergency destruction (all classified material is destroyed)

Order to destruct

TS/S/C/U

Who can initiate E.D.

CO

Methods of destroying

Shred, Burn, Pulp, Smash, (Jettisoned)

SCI

Sensitive Compartmented Information

SCIF

Sensitive Compartmented Information Facility

SCIF onboard

JIC, SSES, EXPLOT

INFOCON 5

Nets are fully operational

INFOCON 4

Impact to end users is negligible

INFOCON 3

Impact to end users is minor

INFOCON 2

Impact to end users can be significant

INFOCON 1

Highest readiness condition

COR Audit and Time Frame

Every 24 months a formal inspection is held of all COMSEC related equipment

Pre COR Audit and Time Frame

6 months prior to COR audit, a courtesy one

DCS

Defense Courier Service - Network of couriers that carry classified material around world

TSCO (LT Heinen)

Top Secret Control Officer - Responsible for all TS material

THREATCON

Progressive level of protective measures implemented by all DoD components in response to terrorist threats

SF 700

Combo Card / Secure Container Information Form

SF 701

End of Day / Activity Secure Checklist

SF 702

Open Closure / Secure Container Checklist

SF 703

TS Cover Sheet

When MUST combo be changed

Default / Taken out of service / Compromise / Maintenance has been done / Personnel Transfer / Personnel loses clearance / Every two years; if none the above occurs

FDO

Foreign Disclosure Officer - Decides what classified info can be given to foreign nations

SSO

Special Security Officer

SSO (LT Tortora)

Special Security Officer - Responsible for all SCI material on ship; Make sure all SCIF's onboard as well as equipment in accordance with Security Regulations - Maintain security standards while in secure spaces - Oversee and make sure no Practices Dangerous to Security or Security Violations occur (Leaks, Spillage, Compromise)

TS

Top Secret - Orange - Exceptionally Grave Danger

S

Secret - Red - Serious Damage

C

Confidential - Blue - Damage

U

Unclassified - Green - No Damage

Need to know

Info a person needs to know to do their job

TS or TS/SCI (Renewal)

5 years

S (Renewal)

10 years

C (Renewal)

15 years

SAER

Secure Access Eligibility Report - Up/Downgrade Clearance

When would SAER be used

If person loses clearance

Vulnerabilities w/ Wireless Devices

Can be hacked via wireless connection, info can be stolen or contacts spammed

ATO

Authority to Operate - Allowed to put something on a Navy network

IATO

Interim Authority to Operate - Holds approval to test the info on the network, then receives ATO

OPSEC

Systematic process that controls and protects info about mission

Responsibility of Command OPSECO

Notify CO of all OPSEC matters / Coordinating the development of OPSEC-related portions of operations / IO Planning / Command's OPSEC program / EDU / Training

OPSEC consider Public Affairs

What info should be released to public

WRA

Web Risk Assessment - Content is assessed for compliance w/ all applicable DoD and DoN policies and Guidelines

OPSEC Countermeasures

Prevent the adversary from detecting an indicator

OPSEC Countermeasure examples

Rivercity, EMCON, COMPUSEC, COMSEC

NOST

Naval OPSEC Support Team - Conducts inspection on command OPSEC programs

IOSS

Interagency OPSEC Support Staff - Services to the OPSEC officer, both prospective and current, in the form of OPSEC-Related materials and most importantly, training

JCMA

Joint COMSEC Monitoring Activity - Are hired by customers to provide COMSEC monitoring on COMMS

NCIS

Naval Criminal Investigation Service - Prevent terrorism - Protect against compromise, reduce criminal (all against DoN)

PURPOSE of EW

The control of the Electromagnetic Spectrum

3 parts of EW

Electronic Attack (Jamming / CHAFF) - Electronic Protect (PCMS / EMCON) - Electronic Support (Signal Collection / Dissemination)

3 Basic Components of Radar

Transmitter / Receiver / Antenna

SONAR

Sound Navigation and Ranging - Like radar but underwater

HULTEC

Hull to Emitter Correlation (I see Signal -> Signal from Radar -> Radar from Ship)

MISO

Military Info Support Ops - Aimed at influencing general population

EEFI

Essential Elements of Friendly Information - Key info about intentions, capabilities and activities adversaries try to acquire - Answers to EEFI can potentially lead to Critical Information

Critical Information

Info about friendly activities, intentions, capabilities, or limitations an adversary seeks in order to gain a military advantage.

Ramification of Critical Info

Endangers missions, the loss of service members and/or family

OPSEC ATI GOM

Revoking

DoN Central Adjudification Facility - Lost clearance completely

Suspended

CO - 10 days

SF-86

Form to initiate or renew a clearance

Visitor's Request

Through JPAS

Spillage

Classified info put on NIPR

How often do you change your password

90 days

JPAS

Joint Personnel Adjudication System

DoD CAF

Department of Defense Central Adjudication Facility

Sanitize

Lock workstations; Cover Classified Info; Put material away; Stop Convo; Announce Visitor

ATFP

Anti-terrorism; Force Protection - Detect/Recover

FVEY

Releasing designator that tells which countries may view the info

RAM

Random Antiterrorism Measures

Emergency Destruct

CO may initiate emergency destruction (all classified material is destroyed)

Order to destruct

TS/S/C/U

Who can initiate E.D.

CO

Methods of destroying

Shred, Burn, Pulp, Smash, (Jettisoned)

SCI

Sensitive Compartmented Information

SCIF

Sensitive Compartmented Information Facility

SCIF onboard

JIC, SSES, EXPLOT

INFOCON 5

Nets are fully operational

INFOCON 4

Impact to end users is negligible

INFOCON 3

Impact to end users is minor

INFOCON 2

Impact to end users can be significant

INFOCON 1

Highest readiness condition

COR Audit and Time Frame

Every 24 months a formal inspection is held of all COMSEC related equipment

Pre COR Audit and Time Frame

6 months prior to COR audit, a courtesy one

DCS

Defense Courier Service - Network of couriers that carry classified material around world

TSCO (LT Heinen)

Top Secret Control Officer - Responsible for all TS material

THREATCON

Progressive level of protective measures implemented by all DoD components in response to terrorist threats

SF 700

Combo Card / Secure Container Information Form

SF 701

End of Day / Activity Secure Checklist

SF 702

Open Closure / Secure Container Checklist

SF 703

TS Cover Sheet

When MUST combo be changed

Default / Taken out of service / Compromise / Maintenance has been done / Personnel Transfer / Personnel loses clearance / Every two years; if none the above occurs

FDO

Foreign Disclosure Officer - Decides what classified info can be given to foreign nations

SSO

Special Security Officer

SSO (LT Tortora)

Special Security Officer - Responsible for all SCI material on ship; Make sure all SCIF's onboard as well as equipment in accordance with Security Regulations - Maintain security standards while in secure spaces - Oversee and make sure no Practices Dangerous to Security or Security Violations occur (Leaks, Spillage, Compromise)

TS

Top Secret - Orange - Exceptionally Grave Danger

S

Secret - Red - Serious Damage

C

Confidential - Blue - Damage

U

Unclassified - Green - No Damage

Need to know

Info a person needs to know to do their job

TS or TS/SCI (Renewal)

5 years

S (Renewal)

10 years

C (Renewal)

15 years

SAER

Secure Access Eligibility Report - Up/Downgrade Clearance

When would SAER be used

If person loses clearance

Vulnerabilities w/ Wireless Devices

Can be hacked via wireless connection, info can be stolen or contacts spammed

ATO

Authority to Operate - Allowed to put something on a Navy network

IATO

Interim Authority to Operate - Holds approval to test the info on the network, then receives ATO

OPSEC

Systematic process that controls and protects info about mission

Responsibility of Command OPSECO

Notify CO of all OPSEC matters / Coordinating the development of OPSEC-related portions of operations / IO Planning / Command's OPSEC program / EDU / Training

OPSEC consider Public Affairs

What info should be released to public

WRA

Web Risk Assessment - Content is assessed for compliance w/ all applicable DoD and DoN policies and Guidelines

OPSEC Countermeasures

Prevent the adversary from detecting an indicator

OPSEC Countermeasure examples

Rivercity, EMCON, COMPUSEC, COMSEC

NOST

Naval OPSEC Support Team - Conducts inspection on command OPSEC programs

IOSS

Interagency OPSEC Support Staff - Services to the OPSEC officer, both prospective and current, in the form of OPSEC-Related materials and most importantly, training

JCMA

Joint COMSEC Monitoring Activity - Are hired by customers to provide COMSEC monitoring on COMMS

NCIS

Naval Criminal Investigation Service - Prevent terrorism - Protect against compromise, reduce criminal (all against DoN)

PURPOSE of EW

The control of the Electromagnetic Spectrum

3 parts of EW

Electronic Attack (Jamming / CHAFF) - Electronic Protect (PCMS / EMCON) - Electronic Support (Signal Collection / Dissemination)

3 Basic Components of Radar

Transmitter / Receiver / Antenna

SONAR

Sound Navigation and Ranging - Like radar but underwater

HULTEC

Hull to Emitter Correlation (I see Signal -> Signal from Radar -> Radar from Ship)

MISO

Military Info Support Ops - Aimed at influencing general population

EEFI

Essential Elements of Friendly Information - Key info about intentions, capabilities and activities adversaries try to acquire - Answers to EEFI can potentially lead to Critical Information

Critical Information

Info about friendly activities, intentions, capabilities, or limitations an adversary seeks in order to gain a military advantage.

Ramification of Critical Info

Endangers missions, the loss of service members and/or family

Operations Security/ Officer Liability/ Federal Criminal Las / Fourth Amendment/ Arrest

OFFICER LIABILITY-EPO #1: Identify the five-step OPSEC process.

Identification of Critical Information, Analysis of Threat, Analysis of Vulnerabilities, Assessment of Risks, Application of Countermeasures

Enables OPSEC practitioners to accurately assume the perspective of an adversary.

Analysis of Threat

Two elements of threat

Intent & Capability

Ways that adversaries use to gather information

Communications, imagery, Trash, Open Source, Human, Computer Accessing

Enables the identification of indicators that could be exploited by an adversary

Analysis of Vulnerabilities

Critical Information posted on the internet and Non-secure communication are-

Examples of Vulnerabilities

Vulnerabilities and specific threats must be matched.

Assessment of Risks

Risk is determined by analyzing three factors

Threat, Vulnerability, and Impact

Anything that effectively negates an adversary's ability to exploit vulnerabilities.

Application of Countermeasures

Limiting web page access, shredding sensitive documents, sanitizing bulletin boards, monitoring public conversations, not using e-mail to discuss sensitive operations.

Individual Application of Countermeasures

Procedure changes, deception, background checks, physical security, perception management, speed of execution, stopping the mission,

Agency wide Application of Countermeasures

OFFICER LIABILITY-EPO #2: Identify the elements, applicability, and scope of 42 U.S.C. § 1983 and the Bivens Analogy.

An Act, Committed under color of state law, That deprives a person
Of rights, privileges, or immunities guaranteed by the Constitution of federal law.

A civil wrong, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. The remedy can involve money damages or an injunction.

Tort

OFFICER LIABILITY- EPO #3: Recognize the most common incidents of civil liability for Federal Law Enforcement Officers under Bivens and the defense of qualified immunity.

Unlawful Searches and Seizures, False/Misleading Warrant Affidavits, Excessive Use of Force and Failure to Intervene

OFFICER LIABILITY-EPO #4: Recognize incidents of potential civil liability for Federal Law Enforcement Officers under state tort theories and the FTCA protection from individual liability

Negligent torts & Intentional torts - Federal Tort Claims Act (FTCA)

Sued six federal agents under § 1983, when agents entered apartment without warrant and searched apartment and arrested Bivens. - Trial court dismissed

Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (1971)

The Supreme Court in essence created an analogy to 42 U.S.C. § 1983 under which federal officers and agents may be sued in civil court for violating a person's Constitutional rights.

a "Bivens Action."

When a federal law enforcement officer makes an arrest without probable cause or unlawfully conducts a search,

A Bivens suit can be filed against the officer.

In determining whether a Bivens suit for an unlawful warrantless arrest is proper, the courts must determine whether

a reasonable officer could have believed the arrest to be lawful, and the information the arresting officers possessed.

Officials such as legislators in their legislative functions, judges in their judicial functions, and certain executive branch officials such as the President, and prosecutors, whose special functions or constitutional status requires complete protection from suit, may assert the defense of

Absolute immunity

Immunity has its common law roots in England under the theory that "the King can do no wrong." This theory was an outgrowth of the divine rights of kings, and, in effect, prevented any and all lawsuits against the Crown.

Sovereign (governmental) immunity

Absolute immunity is conferred because of the status or position of the favored defendant to

Avoids personal civil liability.

Based on violation of rights found in the U.S. Constitution.

Constitutional Torts

Principles of civil liability that exist under the laws of the states.

State Law Torts

Only for state, local, DC, territorial officials in federal court (NO Federal officers/agents)

Title 42 USC § 1983 Civil Action for Deprivation of Rights

Applies to federal action- Limited to 4th, 5th, and 8th Amendment violations
"Objectively reasonable" standard

Bivens Actions

Immunity from civil suit and entitles an officer to avoid standing trail or face the burdens associated with civil litigation. This immunity applies to LEO when that LEO is sued for a constitutional tort ONLY.

Qualified immunity

LEO acted reasonable and in "good faith" and
conduct of LEO does not violate "clearly established" constitutional/statutory rights of which a reasonable LEO would have known.

Protects LEO from civil liability

Elements of Negligent torts

Duty, Breach of Duty; Causation; and Damages

Negligent torts and Intentional torts

State law torts

Intentional torts is a state law torts applicable to federal law enforcement officers includes:

battery, assault, false imprisonment

The care exercised was below the standard of care established by custom or usage

Breach of duty

The defendant's act that breached the duty of care must be the cause of plaintiff's damages

Causation

Willful and intentional act that causes the damages
- Intentional torts to persons: battery, assault, false imprisonment, false arrest, and intentional infliction of emotional stress.

Intentional Tort to person

Trespass (damage) to Land (real property); trespass (damage) to Chattels (personal property); Conversion (personal property) (theft);

Intentional Tort to property

Makes the US liable for acts of employees NOT FOR CONSTITUTIONAL TORTS

Federal Tort Claims Act FTCA

Partial waiver of sovereign immunity to provide redress to citizens. Protects federal employees from personal liability for torts committed within the scope of their employment.

FTCA Purpose

Only covers employees from negligent torts if they are operating in the "course and scope" of employment, BUT covers federal LEO (anyone with full arrest or seizure authority) for intentional torts

FTCA

Determination of whether the employee was performing the employer's (federal gov't) business at the time of the occurrence.

Scope of Employment

FTCA statute of limitations

Two Years

FTCA claim must be file first, cannot sue in court initially and must be in a U.S. District Court, with no jury, and judged by -

federal judge

In essence the Act extends the federal scope of employment to non-federal crimes of violence being committed in the federal officer's presence.

"Federal Law Enforcement Officers' Good Samaritan Act."

Provides that they are within the scope of employment when taking reasonable action, including the use of force: (1) to protect an individual in the presence of an officer from a crime of violence; or (2) to provide immediate assistance to individuals who have suffered or who are threatened with bodily harm; or (3) to prevent the escape of any individual whom the officer reasonably believes to have committed in the presence of the officer a crime of violence.

The Federal LEO "Good Samaritan Act."

Protects federal employees from personal liability for torts committed within the scope of their employment.

Federal Tort Claims Act (FTCA)

Title18 U.S.C. § 3109is commonly referred to as the

"Knock-and-announce statutes"

Protective Sweep is conducted to

protect the officers and others

Officers may only "sweep" those spaces where

an individual might be found.

Incriminating evidence found during a lawful protective sweep may be seized under the-

Plain View doctrine

Allows officers to seize evidence they discover while in a public place or lawfully inside an REP-protected area.

The Plain View Seizure Doctrine

Officer must have a lawful reason to be in the location from which he or she observed the item.

The first requirement of any plain view seizure.

The Incriminating Nature of the Item Must Be Immediately-

Apparent

The item incriminating character must also be immediately apparent.

The second requirement of any plain view seizure.

An officer's personal observations may establish that criminal evidence is inside a premises. But even when the evidence is contraband, the basic rule is that the government may not enter and seize it without-

without consent, or exigent circ*mstances.

Even if the officer can see the object from a place where he or she is lawfully present, the officer may not seize it unless he or she also has

a lawful right of access to the object itself.

when the evidence is contraband, the basic rule is that the government may not enter and seize it without -

a warrant, consent, or exigent circ*mstances.

Within the federal system, arrest warrants may be obtained in several ways, including

a criminal complaint, a grand jury indictment, or an information.

A "complaint" is defined by Rule 3 as "a written statement of the essential facts constituting

the offense charged.

Rule 4 addresses the issuance of federal arrest warrants based upon a

Complaint

A federal arrest warrant must contain the following:

Signature of the Judge, Name of the Defendant, The Offense Charged: and Command to Arrest:

The defendant must arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer."

Command to Arrest:

The warrant must "describe the offense charged in the complaint."

The Offense Charged

The defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty."

Name of Defendant

The warrant must be "signed by the

magistrate judge

An arrest warrant "may be executed ... within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest."

Territorial Limits

Only a marshal or other authorized officer may

execute a warrant

Unlike a search warrant, there is typically no
timeframe in which an arrest warrant is required to be executed.

Time Limits

A warrant is executed upon the arrest of the defendant.

Manner of Execution

Probable cause, arrest authority, and lawful right of access of the suspect are -

the requirements for a lawful arrest

When an officer has probable cause to believe that a suspect located in a public place has committed a felony offense, he or she may make-

a warrantless arrest of that person.

Depends on whether the crime is a felony or a misdemeanor, and whether the suspect is in a public or private area.

the legality of a warrantless arrest

An arrest warrant does not allow the government to lawfully enter a home where the target-

does not reside to make the arrest.

In determining whether a suspect is present in the home before executing the arrest warrant, courts look to

the totality of the circ*mstances known to the officer

Officer must have: (1) a reasonable belief that the suspect lives at the home to be entered, and (2) a reasonable belief that the suspect is currently present in the home.

Entering the Suspect's Home to Make an Arrest

Unless authorized by statute, federal law enforcement officers are not authorized to arrest individuals-

on outstanding state warrants

Authority to arrest is limited to statutory authority. The officer should verify that the warrant is still valid, and that the person arrested is the individual specified on the warrant.

Outstanding Federal Arrest Warrant

Most federal law enforcement officers have statutory grants of authority provided to them by

Congress

Authority to make arrests comes from three different sources.

Statutory Authority, Peace Officer Status, and Citizen's Arrest Authority

Allows a citizen with probable cause of a felony to make an arrest for that crime.

Citizen's Arrest Authority

Federal officers may, in certain states, make arrests for violations of state law.

Peace Officer Status

Most federal law enforcement officers have statutory grants of authority provided to them by Congress.

Statutory Authority

In the federal system, the authority to make arrests varies from agency to agency. The scope of arrest authority is established by statute.

Arrest Authority

A warrant is not always required for an arrest to be lawful. However, when an individual is arrested, both-

statutory and constitutional requirements must be satisfied.

He or she may make a warrantless arrest of that person when an officer has probable cause to believe that a suspect located in a public place has committed a

Felony

He or she may make a arrest of that person when an officer has probable cause to believe that an individual has committed a misdemeanor offense in his or her

presence

lawful entry into a person's home to make a warrantless arrest for a misdemeanor requires either

consent or an exigent circ*mstance

The exigent circ*mstance of "hot pursuit," is Only available when pursuing a suspect who is believed to have committed a "serious crime." While some misdemeanors may qualify, the hot pursuit exigency is most often limited to use in

felony pursuits

It places specific requirements upon federal law enforcement officers when executing warrants in dwellings.

The "knock-and-announce statute." Title 18 U.S.C. § 3109

The Supreme Court has held The statute requires that before the government executes a search or arrest warrant in a residence, it must first announce its authority and purpose. e.g., "Federal agents with a search warrant"

the knock-and-announce statute

(1) to reduce the potential for violence to both the officers and the occupants of the house; (2) to prevent, or at least reduce, the needless destruction of private property; and (3) to recognize an individual's right of privacy in his or her home

knock-and-announce three primary purposes

Under § 3109 is that the officers be refused or denied admittance. Once the officers have been refused or denied admittance, they can use force to "break" into the residence

and executed the warrant

Where a "reasonable" period of time has passed after your command, a refusal to comply with an officer's order to "open up" can be inferred from

silence

allows officers to dispense with the knock-and-announce requirement in certain situations. To lawfully use force to enter a residence without complying with the knock-and-announce" requirements, officers must have a reasonable suspicion, under the particular circ*mstances, that knocking and announcing their presence would be dangerous or futile, or
Fourth Amendment 331
that it would inhibit the effective investigation of the crime

Exigent Circ*mstances and § 3109

A quick and limited search of a premises incident to an arrest, which is conducted to protect the safety of officers and others.

Protective Sweeps

A protective sweep is not a full search of a dwelling. Officers may only "sweep" those spaces where an

an individual might be found

Incriminating evidence found during a lawful protective sweep may be seized under the-

plain view doctrine

The Supreme Court has ruled that a protective sweep may last "no longer than it takes to complete the

arrest and depart the premises." Maryland v. Buie.

The Supreme Court has identified two types of protective sweeps. The first, which requires no articulable suspicion, involves looking in closets and other people-sized places immediately adjoining the place of arrest from which

an attack could be immediately launched.

The Supreme Court has identified two types of protective sweeps. The second, which requires reasonable suspicion, allows a

greater intrusion into the premises.

Officers armed with an arrest warrant (or a search warrant for a person to be arrested) may enter the premises and search for the arrestee in any area that could conceal a person.

Automatic Protective Sweeps

In Buie, the Supreme Court held that if officers wish to sweep beyond the area immediately adjacent to the place of arrest, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."

Extended Protective Sweeps

The wrongful taking and carrying away of property to the U. S. government or any agency thereof with the intent to deprive the use or benefit of the property so taken.

Theft

The wrongful, intentional taking of property of another by a individual to whom the property had been lawfully given

Theft by Embezzlement

An individual lawfully comes into possession of United States property and wrongfully converts it to his or her own use.

Theft by conversion

A federal agency has a government vehicle for its employees to use for official purposes. At lunch one afternoon, one of the employees uses the government vehicle to go shopping for a couple of hours at a local mall.

The employee is guilty of conversion under § 641

Kowingly receiving stolen, embezzled, or converted United States government property. Because the individual receiving the property knows that it has been stolen, embezzled or converted,

Theft by Receipt of Stolen Property

Individuals who assist or help to commit the offense, provide assistance before the crime is committed, and after the crime has been committed. May have knowledge that a federal crime was committed, yet take steps to conceal this knowledge from federal officers.

Parties to Criminal Offense

Any person who knowingly aids, abets, counsels, commands, induces or procures the commission of an offense may be found guilty of that offense.

Aiding and Abetting18 U.S.C. §§ 641 and 2.

An accessory after the fact is one who, with knowledge that an offense was committed, receives, relieves, comforts or assists the offender with the intent to hinder or prevent the offender's apprehension, trial or punishment.

Accessory After The Fact 18 USC € 3

Individuals who have knowledge of a felony offense and take affirmative steps to conceal the crime and fail to disclose their knowledge to criminal investigators.

Misprision of Felony

The defendant, Regarding certain federal matters;
Knowingly and willfully;
Made a false material statement, or; Concealed or covered up a material fact, or;Made or used a document containing a false material statement

Elements of False Statement 18 U.S.C. § 1001

When a crime is committed, the individual who actually commits the crime is referred to as the

principal

When a family member lies to an officer about the whereabouts of a sibling who is involved in a theft of government property in order to protect the sibling from being arrested and punished for the theft, the family member is -

an accessory after the fact

In order to convict a defendant of misprision of felony, the government must prove a federal felony was committed and

the defendant had knowledge of the felony that was committed

For a person to be convicted of making a false statement under § 1001, the false statement must be-

material

The Supreme Court now holds § 1001 covers any false material statement, of whatever kind, including the use of the word

no

An act, or failure to act, prohibited by law and punishable by the government.

a crime

An act, or failure to act, in which the law provides a remedy for the victim through a civil action (claim and/or lawsuit).

A tort

If the value of the property stolen, embezzled, converted, or received is more than $1,000, the offense is

a felony

If the value of the property stolen, embezzled, converted, or received is $1,000 or less, the offense is

a misdemeanor

The defendant voluntarily, intentionally, and knowingly; Stole property belonging to the United States or any department or agency thereof; With the intent to deprive the United States of the use or benefit of the property so taken.

Three elements that must be proven to convict a defendant of "theft"

A defendant takes a vehicle that belongs to the United States government and paints the vehicle a different color, intending to keep it for his own use and enjoyment. The defendant is guilty of

theft of government property.

A federal postal employee is responsible for selling stamps to the public. At the end of the work day when the employee is obligated to deposit the days cash receipts into the government account, the employee pockets the money for his personal use. The employee has committed the crime

of embezzlement

A federal employee steals a computer belonging to the United States government. The employee takes it to a friend and asks him if he would like to buy it at a discount. When asked about the origin of the computer, the employee admits to the friend that it was stolen. The friend decides to purchase the computer for his own use.

Theft by Receipt of Stolen Property

All four types of theft set forth in the statute apply to government property to include

property made under contract for the United States.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons perform any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years or both

The general federal conspiracy statute, 18 U.S.C. § 371

Two or more persons;
2. Intentionally;
3. Agree; 4. To violate federal law or defraud the United States; 5. Commit an overt act in furtherance of the
agreement.

Five essential elements to establish a violation of § 371.

A conspiracy requires the participation

of "two or more persons."

The statute of limitations for conspiracy is

five years

Mobile Conveyance Exception

Carroll Doctrine

Carroll verus United States, the Carroll Doctrine

Established by the Supreme Court in 1925

A well-recognized exception to the warrant requirement. Evidence found may be used against the defendant in a later trial.

Inventory Search

Search to locate and safeguard personal property

Inventory

Scope of inventory is base upon your

Proable Cause

Exist when a reasonable person would believe that, based on the available facts, an immediate entry or search is necessary to prevent the escape of a suspect, the destruction of evidence, or the death or injury of a person.

Exigent Circ*mstances

For hot pursuit to be a lawful exigent circ*mstance:

There must be an "immediate or continuous" pursuit of the suspect. Probable Cause to Arrest for a Serious Crime.

A second common exigent circ*mstance involves the actual or potential -

Destruction or Removal of Evidence

Must meet two requirements: (1) officers must have objectively reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; and (2) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched

A valid emergency scene search

There must be an "immediate or continuous" pursuit of the suspect. Probable Cause to Arrest for a Serious Crime.

Hot Pursuit

Once the exigent circ*mstances that justified the warrantless search no longer exist,

the right to conduct a warrantless search also ends

Facts exist that would lead a reasonable person to believe that a person is in some type of danger

Probable cause in the context of an emergency scene situation

As with any lawful warrantless search, officers may seize any evidence that is in

plain view during the course of emergency activities

There is no murder-scene or crime scene exception to the

Fourth Amendment

Officers may enter an emergency scene without a warrant to tend to victims and locate suspects, but when the emergency ends, so does an officer's right to be present in the location

without a warrant

When an occupant of a home, upon seeing law enforcement officers standing on her porch, hurriedly begins to pour illegal drugs down a drain.

An example of when the potential destruction of evidence may allow a warrantless entry and search

There is no exigency required to conduct a warrantless vehicle search; all that is required is a

mobile conveyance and probable cause

The majority rule, (followed in the Sixth, Eighth, and D.C. Circuit Courts of Appeal), holds that a warrantless search to prevent the destruction or removal of evidence is justified if it proving that there is

a reasonable belief that third parties are inside the dwelling; and that the loss or destruction of evidence is imminent.

A suspect may not defeat an arrest which has been set in motion in a public place by-

escaping to a private place

"Hot pursuit" occurs when a suspect enters an area of REP

From a Public Place

Under the Carroll Doctrine, the requirement to obtain the warrant is

excused

First established by the Supreme Court in the 1925 case of Carroll v. United States.

The Carroll Doctrine, Mobile Conveyance Exception

Provides that if officers have probable cause to believe that a mobile conveyance located in a public place has evidence of a crime or contraband located within it, they may search it without first obtaining a warrant.

The Carroll Doctrine

The plain-smell corollary to the plain view doctrine may also allow officers to establish probable cause to search a vehicle based upon their

sense of smell

To Conduct a Search Under the Carroll Doctrine There is

No "Exigency" Required

Must be voluntarily obtained.

Consent

The consent must be voluntarily given and must be by an individual with either actual or apparent authority over a place to be search.

A valid consent to search

When LEO obtains a valid consent to search a giving area or object, neither reasonable suspicion or proable cause is

required

Criminal evidence discovered during a valid administrative search may be seized under the

Plain view doctrine

The Supreme Court has never approved a checkpoint program whose primary purpose was to detect

evidence of ordinary criminal wrongdoing

City of Indianapolis verus Edmond

Police set up a checkpoint to discover drugs.

Border intrusion are categorized into two types:

Routine and non-routine.

An inventory will not be valid if the property searched is not lawfully in the custody of

the law enforcement officers who perform the inventory.

"The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of

objective' reasonableness

An individual may say something like, "You may search here but not there."

limit the scope of consent

An individual may
also revoke consent. When consent is revoked, the government is required

to stop searching

A searched is not valid if another party with authority is present and expressly

refuses to give consent

An individual who shares a residence with another person assumes the risk that the other person might consent to a search of

all common areas of the residence

one roommate may not generally give consent to search the personal property or exclusive spaces (e.g., bedroom) of

the other roommate

These types of administrative searches can include inspecting both personal and real property

Generally termed "inspections,"

The Supreme Court has allowed searches for certain administrative purposes without particularized

suspicion of misconduct,

Administrative searches must be conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than

to secure evidence of a crime.

May be seized under the plain view doctrine and may be used to establish probable cause to obtain a criminal search warrant.

Criminal evidence

The use of highway sobriety checkpoints does not violate the

Fourth Amendment

Security screening searches at facilities such as airports, military bases, courthouses, and other sensitive government facilities fall within the class of-

administrative searches

In airports, for instance, persons who have not attempted to access the secure terminal are not subject to an

administrative search.

Someone who begins the security screening process no longer has the right to avoid a search by electing to

turn back

A full strip search, an X-ray examination of the body, a demand to remove an artificial leg and a body cavity search are examples of

non-routine border searches.

At a minimum, officers must have reasonable suspicion of a violation for

non-routine border searches and seizures.

Sealed letters which apparently contain only correspondence cannot be opened without

consent or a search warrant.

Where the checkpoint is set up to gather information regarding a previous crime. In Lidster, police set up a checkpoint in the area of a fatal accident one week after it occurred.

Information-Gathering Checkpoints

In City of Indianapolis v. Edmond, police officers set up a checkpoint to discover drugs. The Supreme Court determined because the primary purpose of the checkpoint was to advance "the general interest in crime the checkpoint was

unlawful

For an administrative warrant, probable cause in the criminal law sense is not required. Instead, courts will look to see if a valid public interest justifies

the inspection.

This statute provides a civil cause of action against state and local law enforcement officers who, acting under color of law, deprive an individual of any civil right.

Title 42 U.S.C. § 1983 (Civil Action for Deprivation of
Rights)

The issue in cases involving claims of excessive force is whether the arresting officer's actions were-

objectively reasonable

If a law enforcement officer fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer can be held liable under

Bivens

Is immunity from civil suit and entitles a law enforcement officer to avoid standing trial or facing the burdens associated with civil litigation.

Qualified Immunity

When the defense of qualified immunity is applicable in a lawsuit alleging a constitutional tort, officers will not be held personally liable as long as their actions

are reasonable in light of current law.

The traditional state law torts applicable to federal law enforcement officers are:

negligent torts; and intentional torts

A violation of statutory rules of the road by a federal employee in driving a motor vehicle in the course of employment in a violation of agency policies and practices.

Breach of Duty

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance

The "knock and announce" statute

The defendant's act that breached the duty of care.

Causation

In civil suits, the plaintiff may recover for the personal injury or property damage caused by defendant's breach of duty.

Damages which is generally compensatory

The elements of an intentional tort are similar to those of a negligent tort except that the act that causes the damages must be

willful and intentional.

Intentional torts can be against a person, or

against property

Trespass to Land: Damage to real property; Trespass to Chattels; Damage to personal property ; Conversion: Personal property, theft.

Intentional Torts to Property

In 1946, the Federal Tort Claims Act (FTCA). was enacted by

Congress

This act makes the United States liable under the local law of the place where the tort occurs for the negligent or wrongful acts or omissions of federal employees within the scope of their employment.

The Federal Tort Claims Act

The executive departments, the judicial and legislative branches, the military departments, and corporations primarily acting as instrumentalities or agencies of the United States, but expressly excludes any contractor with the United States.

Under the FTCA, a "federal agency"

Officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty, and persons acting on behalf of a federal agency in an official capacity.

Under the FTCA, an "employee of the government"

Covers lawsuits for negligent or wrongful acts or omissions of federal employees within the scope of their employment that cause loss of property, personal injury or death.

The FTCA

A tort action against the United States is the sole remedy available to a

plaintiff

The FTCA specifically does not apply to intentional torts committed by federal employees who are

not law enforcement officers.

Intentional torts such as Assault, battery, false imprisonment, false arrest, and malicious prosecution are common allegations against

law enforcement officers

Means any officer of the United States who is empowered by law to: execute searches; or seize evidence, or make arrests for violations of federal law.

investigative or law enforcement officer

The FTCA now provides that the government will permit itself to be sued with respect to assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process if

the act was that of an investigative or law enforcement officer

The FTCA covers lawsuits for negligent or wrongful acts or omissions of

federal employees

A law enforcement officer found to have used a government vehicle outside the scope of employment will not be protected by the FTCA and will, therefore -

be personally liable for the injury and damages caused

Assumption of Risk; Contributory/Comparative Negligence; Consent:

Defenses to Negligent Torts:

Under Negligent Torts, the Plaintiff has assumed the risk of injury.

Assumption of Risk:

Under Negligent Torts, the plaintiff has been negligent, and that negligence is a cause of the plaintiff's damages.

Contributory/Comparative Negligence

Self-Defense and Defense of Others is a

Defenses to Intentional Torts

Under Intentional Torts, Knowing and voluntary consent by plaintiff will bar recovery against defendant.

Consent

Under Intentional Torts, A defendant who acts to prevent a threatened injury from some force of nature, or other cause

Necessity

Local police officers arrested the defendant without a warrant at his place of employment. Other officers went to his home. After a neighbor told the officers where the defendant secreted a key, they entered the house. The officers searched and found evidence of gambling paraphernalia that they turned over to the U.S. Marshal. Later that day, the Marshal returned to the house and found additional evidence. Neither the Marshal nor the local officers had a search warrant. The government used this evidence to convict the defendant of using the mails to transport gambling paraphernalia.
ISSUE: Whether the evidence seized by the U.S. Marshal was admissible?

No. As the evidence was obtained through unconstitutional means, it was not admissible.

The Supreme Court created i Its or the purpose to deter unreasonable activity - to compel respect for the constitutional guaranty to be free from unreasonable searches

The exclusionary rule

DEA agents suspected the defendant of manufacturing controlled substances on his ranch. The ranch was completely encircled by a perimeter fence, and contained several interior barbed wire fences, including one around the house approximately fifty yards from the barn, and a wooden, corral fence enclosing the front of the barn. The barn had an open overhang and locked, waist high gates. Agents, without a warrant, climbed over the perimeter fence, several of the barbed wire fences, and the wooden fence in front of the barn. They were led there by the smell of chemicals, and while there, could hear a motor running inside. They shined a flashlight inside and observed a drug lab. Using this information, the agents obtained and executed a search warrant.
ISSUE: Whether the officers' observations were made in the open field?

Yes. The officers did not intrude upon an area where the defendant had a REP

Officers had information indicating that the defendant was involved in trafficking narcotics. They obtained garbage bags from his regular trash collection left on the curb in front of his house. The officers developed probable cause and obtained a search warrant based on evidence found in the garbage. The search warrant yielded quantities of controlled substances. The defendant and others were arrested and released on bail. The officers again received information that the defendant was engaged in narcotics trafficking. Again the officers obtained his garbage from the regular trash collector. A second warrant was executed and the officers found more evidence of trafficking in narcotics. Did the defendant have a reasonable expectation of privacy in garbage left for collection outside the curtilage of his home.,

No. The defendant abandoned any reasonable expectation of privacy

Two officers were on patrol in a high-crime area. They discovered a group of youths huddled around a car. The youths, including the defendant, fled when they observed the approaching unmarked police car. A police officer, wearing a "raid" jacket, left the patrol car to give chase. The officer took a circuitous route that brought him in direct contact with the defendant. The defendant was looking behind as he ran and did not turn to see the officer until the officer was almost upon him, whereupon the defendant tossed away a small rock. The officer tackled him, handcuffed him, and radioed for assistance. Officers recovered the rock, which proved to be crack cocaine. ISSUE: Whether the defendant was "seized" at the time he dropped the controlled substance?
Fourth

No. The government had not seized the defendant until it engaged in physical contact with him.

Officers lawfully stopped the defendant for driving a vehicle with an expired license plate. One of the officers approached and asked the defendant to step out of the car and produce his driver's license and registration. It was the common practice of the officer to order all drivers out of their vehicles whenever they conducted a stop for a traffic violation. As the defendant got out of the car, the officer noticed a large bulge under the defendant's sport jacket. Fearing that the bulge might be a weapon, the officer frisked the defendant and discovered a loaded handgun. The defendant was immediately arrested for carrying a concealed deadly weapon and for Fourth Amendment 93
carrying a firearm without a license.
ISSUES: 1. Whether the officer's order to get out of the car during a lawful traffic stop was reasonable under the Fourth Amendment? during a lawful traffic stop was reasonable under the Fourth Amendment?
2. Whether the frisk of the defendant was lawful under the Fourth Amendment

Yes. The officer's order to get out of the car did not violate the Fourth Amendment and Yes. The frisk of the defendant, conducted was lawful.

The defendant was stopped for speeding. While the officer wrote the defendant a ticket, a second officer arrived at the scene with a drug-detection dog and walked the dog around the defendant's vehicle. After the dog alerted on the trunk of the car, the officers opened the trunk, discovered a controlled substance, and arrested the defendant.
ISSUE: Whether the Fourth Amendment requires reasonable suspicion to justify the use of a drug-detection dog during a lawful traffic stop?

No. No suspicion is required to use a drug-detecting dog during a traffic stop.

York City at Miami International Airport under an assumed name, which was legal at the time. The defendant also checked his two suitcases bearing identification tags with the same assumed name. Two officers had previously observed him and believed that his characteristics fit a "drug courier profile." They approached him. Upon request the defendant produced his airline ticket and driver's license, which bore his correct name. The defendant explained that a friend had made the ticket reservations in the assumed name. The officers told the defendant that they were narcotics investigators and that they had reason to suspect him of transporting narcotics. Without returning his ticket or driver's license, the officers asked him to accompany them to a small room about forty feet away. Without the defendant's consent, one of the officers retrieved his luggage and brought it to the room. Although he did not orally consent to a search of the luggage, the defendant produced a key and unlocked a suitcase in which marijuana was found. ISSUES: 1. Whether the seizure of the defendant was unreasonable, tainting his consent?

Yes. The officers exceeded the scope of their stop, turning it into an arrest without probable cause.

Investigative detentions ("stops") must be temporary and last no longer than is necessary to effectuate the

purpose of the stop.

There are three types of police-citizen encounters:

a consensual encounter; an investigative detention or "Terry stop"; and an arrest.

Are considered "seizures" for Fourth Amendment purposes.

Terry stop and arrest

A brief, voluntary encounter between law enforcement officers and citizens.

Consensual Encounters (Voluntary Contacts)

The officer may approach an individual and ask questions, even incriminating questions, may request to see an individual's identification, may identify him or herself and display credentials and may seek consent for a search or a frisk

Police-citizen consensual encounter

In Terry v. Ohio, the Supreme Court recognized a third type of police-citizen encounter, known as an

Investigative Detentions; Terry Stops

A law enforcement officer must have a reasonable, articulable suspicion that criminal activity is afoot and the person detained is somehow involved in order to make an-

investigative detention,

the officer must have explainable (articulable) reasons to justify a temporary seizure of a person. "Criminal activity is afoot" means that the officer must reasonably suspect that:

A crime is about to be committed, being committed; or been committed.

Law enforcement officers may use a variety of different investigative techniques to obtain enough information to establish reasonable suspicion to detain a person through-

Personal observation, information from other officers, from witness or victims and informants

Some common factors officers can use to justify investigative detentions include, but are not limited to:

A suspect behavior, criminal history, flight from officer, time and location etc.

An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. If an investigative detention is extended, a judge may find that

a de facto arrest has occurred

In Terry, the Supreme Court outlined the legal requirements for what has become known as a Terry frisk. If, during an investigative detention, an officer develops reasonable suspicion that

the individual is presently armed and dangerous

If a de facto arrest occurred and it was not supported by probable cause, it is an illegal arrest and any evidence derived from it result of a search incident to the unlawful arrest will be

inadmissible

A suspect, through past criminal history or association with violent gangs, has a reputation for being armed and dangerous; A bulge in a suspect's clothing indicating the possible presence of a weapon; A "furtive" or other movement by the suspect indicating he is checking or adjusting a hidden weapon or ensuring that it remains concealed; are some common factors to

reasonable suspicion that a suspect is presently armed and dangerous

While the purpose of a Terry frisk is to discover weapons, not evidence of a crime, the Supreme Court has already held that an officer may seize contraband detected during the

lawful execution of a Terry frisk

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of a vehicle. Stopping an automobile and detaining its occupants constitutes a 'seizure' within the meaning of

The Fourth Amendment

If an officer has reasonable suspicion to believe the driver or passenger in a vehicle is dangerous and may gain immediate control of a weapon, the officer may "frisk" that person, as well as the

entire passenger compartment of the vehicle include any unlocked containers

The third type of "citizen-police" encounter is an arrest based upon-

probable cause

The Fourth Amendment provides that "no Warrant shall issue but upon probable cause ...." In cases in which the Fourth Amendment requires that a search warrant be obtained, "probable cause" is the standard by which a particular decision to search is tested against the constitutional mandate of

reasonableness

probable cause to "arrest" or "search" have been formulated. Probable cause to "search" exists where the known facts and circ*mstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found in

the place to be searched.

Probable cause to "arrest" exists when the known facts and circ*mstances are sufficient to warrant a prudent person in believing that the suspect had

committed or was committing an offense

Personnel roster, unmarked vehicles, equipment, frequencies and capabilities

EEFI

Are aspect of an operation that if known by the adversary, would subsequently compromise, lead to failure, or limit the success of the operation

Essentials Elements of Friendly Information (EEFI)

Are simple procedural adjustments that eliminate or minimize the generation indicators.

The most effective countermeasure

Risk is determine by analyzing three factors

Threat, Vulnerability, and impact

During this step, OPSEC address the capability of the adversary to use the information that has been collected in an attempt to utilize the information against us.

Analysis of Vulnerability

Using published material that describes how we do things, who we are, and where we are located.

Open Source

Open Source can provide the criminal with an excellent profile of the

Agency

The use of electronic devices to obtain information on police operation and personnel,

Communications

The uses of still video cameras to obtain visual representation of law enforcement personnel or operations.

Imagery

The process of searching trash to gather data on people and activities

Trash, dumpster diving

The process of watching, listing, and asking question about the abilities and intention of law enforcement agency.

Human

Anyone who opposes, or acts against, law enforcement interest

An adversary

Does an adversary intend to gain our sensitive/ critical information?

Intend

Is the adversary capable of gaining the information

Capability

Defined information in need of protection and analyzes how that information may be inadvertently compromised.

Identification of Critical Information

Elements of operational/mission sensitive information that require safeguarding.

Current operation, Suspects, Informants, Warrants, Location of operations, Surveillance

May range from highly sophisticated foreign intelligence organizations to criminal entities and terrorist groups

Adversary capabilities

If risk is great then high priority for protection of information should be

enforced and corrective action taken

Officer Smith used force to seize Jones. Jones sued for excessive force under the Fourth Amendment. Pick the correct statement about qualified immunity.

Officer Smith may get qualified immunity even if the judge finds that the force was unconstitutional

The Court identified the opening of a closed but unlocked door, lifting a latch, turning a door knob, unhooking a chain, pushing open a hasp, or pushing open a closed door of entrance to a house, even a closed screen door, as a

breaking (with respect to § 3109)

The length of time an officer must wait before using force to enter a home with a warrant is determined by the

"totality of the circ*mstances."

Federal agents obtain a valid premises search warrant to look for p*rnographic materials in Black's home. When the warrant is executed, the agents properly knock, announce their identity and purpose, and demand admittance. Black opens the door and the agents enter. Immediately, the agents notice that four other people are inside the house. One of the individuals is recognized as Black's live-in girlfriend, Courtney. The other three persons are unknown. Without hesitating, the agents order all five people to stand and face the wall, where a frisk is conducted for the safety of the officers. During the frisk of Courtney, one agent discovers what is immediately apparent to him to be crack cocaine. He reaches in, retrieves the item, and confirms that it is cocaine. Courtney is arrested. At her trial for narcotics possession, Courtney makes a motion to suppress the cocaine. According to the law, this motion will be:

Granted, because, pursuant to the premises search warrant, the agents could not conduct a frisk of Courtney

A premises search warrant does not allow law enforcement officers to either frisk or search persons who may be present on the premises at the time the

warrant is executed

An undercover officer purchased controlled substances from King yesterday and today a warrant was issued for King's arrest. Officers spotted King in his usual place in a high crime area where he had been seen selling drugs the day before from his car. King was arrested on the warrant. After arresting King and placing him in handcuffs, the officer had him sit in the back of the officer's vehicle. The officer then returned to King's vehicle and began to search it. Under the front passenger seat, the officer found a bag containing cocaine. Under the back seat, the officer found rolling papers. The officer then opened the trunk of the vehicle and began to search it. Immediately, 6 bricks of marijuana were discovered. At his trial for possession of controlled substances, King makes a motion to suppress all of the evidence found in his vehicle. According to the law:

All of the evidence is admissible.

The defendant was arrested for driving with a suspended license. He was handcuffed and locked in the back of a patrol car. There were five officers at the scene and two other suspects who had already been arrested, handcuffed, and locked in patrol cars. The officers searched the defendant's vehicle incident to his arrest and found a gun and cocaine in the pocket of a jacket in the back seat. ISSUE: Whether the government may automatically search a vehicle incident to arrest when the arrestee has been secured and no longer has access to weapons or evidence? (Arizona v. Gant)

No. there is no longer any risk that he will access weapons or evidence contained in the vehicle.

The justifications for searching a vehicle incident to arrest are

officer safety, and evidence preservation.

Police Detective McFadden had been a police officer for 39 years. He served 35 years of those years as a detective and 30 of those years walking a beat in downtown Cleveland. At approximately 2:30 p.m. on October 31, 1963, Officer McFadden was patrolling in plain clothes. Two men, Chilton and the defendant, standing on a corner, attracted his attention. He had never seen the men before, and he was unable to say precisely what first drew his eye to them. His interest aroused, Officer McFadden watched the two men. He
Fourth Amendment 85
saw one man leave the other and walk past several stores. The suspect paused and looked in a store window, then walked a short distance, turned around and walked back toward the corner, pausing again to look in the same store window. Then the second suspect did the same. This was repeated approximately a dozen times. At one point, a third man approached the suspects, engaged them in a brief conversation, and left. Chilton and the defendant resumed their routine for another 10-12 minutes before leaving to meet with the third man.
Officer McFadden suspected the men were "casing a job, a stick-up," and that he feared "they may have a gun." Officer McFadden approached the three men, identified himself and asked for their names. The suspects "mumbled something" in response. Officer McFadden grabbed the defendant, spun him around and patted down the outside of his clothing. Officer McFadden felt a pistol in the defendant's left breast pocket of his overcoat, which he retrieved. Officer McFadden then patted down Chilton. He felt and retrieved another handgun from his overcoat. Officer McFadden patted down the third man, Katz, but found no weapon. The government charged Chilton and the defendant with carrying concealed weapons. ISSUES: Whether the detective's actions constituted a seizure?
and a search? (Terry v. Ohio)

Yes. Detective McFadden did seized and search the defendant.

The Court acknowledged that limited intrusions, based on articulated, reasonable suspicion can be

reasonable

Marsh checked a suitcase at the airline counter and got onto an airplane. Before the suitcase was placed on the airplane, it was sniffed by a drug detection dog. The dog indicated that drugs were located inside which established probable cause to search the suitcase. With this knowledge, two DEA agents entered the airplane, approached Marsh, identified themselves, and asked him if they could look in the suitcase he had checked at the counter. Marsh stated, "I'm not traveling with a suitcase." Because the plane wasn't scheduled to take off for an hour (and Marsh didn't think he would miss the plane), Marsh voluntarily agreed to accompany the agents to the suitcase, was shown the suitcase, and was asked again if they could open it. Again, Marsh denied ever seeing the suitcase. The agents opened the suitcase and discovered contraband inside. At trial, the contraband should be -

Admitted, because Marsh abandoned the suitcase.

Two officers develop reasonable suspicion that Smith is about to rob a convenience store. The officers approach Smith, place him under arrest, and search him. The officer conducting the search feels what is immediately apparent to him to be crack cocaine. The officer then retrieved the substance. At trial, Smith makes a motion to suppress the crack cocaine found during the search. According to the law, this motion should be:

Granted. The officers arrested Smith when they only had reasonable suspicions.

An officer receives a report from the dispatcher about an armed robbery in the area, along with a description of the vehicle and the three men believed to have committed the crime. Spotting a vehicle matching the description, with three male occupants inside, the officer stops the vehicle to investigate. She directs the three occupants from the vehicle, and examines the vehicle for weapons. Under the front passenger seat, the officer finds a sawed-off shotgun and some ski masks. All three men are then arrested. At trial, the men file a motion to suppress the evidence found in the vehicle. According to the law, this motion should be:

Denied, because the officer was justified in looking under the front passenger seat for weapons.

The report, the description, and the fact the vehicle and occupants generally matching the description is RS criminal activity is afoot. Because the crime under suspicion (robbery) is one in which a weapon is often used, there is also RS the occupants are

armed and dangerous

The defendant was arrested for DUI. During an inventory search of the car, the officer found a locked suitcase in the trunk. The officer opened the suitcase and found a garbage bag containing marijuana. ISSUE: Whether a container found during an inventory search may be opened where there is no agency policy regarding the opening of containers?

No. Absent a routine agency policy regarding the opening of containers found during an inventory search, a container may not be opened.

The defendant was federally licensed to deal in sporting weapons. An ATF inspector inspected the defendant's books and requested entry into his locked gun storeroom. The defendant asked the inspector if he had a search warrant. The inspector explained that the Gun Control Act, 18 U.S.C. § 921, authorized such searches, known as compliance checks. After the search, the inspector seized two sawed-off rifles that the defendant was not licensed to possess. ISSUE: Whether the search of the business premises was reasonable?

Yes. Compliance checks are reasonable.

Tom sees Bob putting some of their office government computers into the trunk of his personal vehicle. Tom, thinking that Bob is stealing the computers, calls the local FBI office to report the theft. The FBI, as a result of a simple investigation, determines there was no theft, as Bob was simply taking the computers to the disposal office for turn-in prior to the office receiving new computers. Based on these facts, Tom can be charged with:

Nothing.

Bubba calls the Secret Service and says he knows about a plot to kill the Attorney General of the US. This conversation is oral, and is not recorded, and not sworn. The Secret Service discovers that there is no plot to kill the Attorney General, Bubba made the whole thing up to get attention from his girlfriend. Has Bubba committed a federal offense under 18 U.S.C. §1001.

Yes

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 upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment to the United States Constitution

The Fourth Amendment regulates the actions of government officials. The term "government" does not solely refer to law enforcement conduct. Instead, the Fourth Amendment acts as a restraint on the-

entire government

The Fourth Amendment prohibits government intrusion upon the privacy and property rights of the

people

OPSEC — I Hate CBT's (2024)
Top Articles
Latest Posts
Article information

Author: Clemencia Bogisich Ret

Last Updated:

Views: 5747

Rating: 5 / 5 (60 voted)

Reviews: 83% of readers found this page helpful

Author information

Name: Clemencia Bogisich Ret

Birthday: 2001-07-17

Address: Suite 794 53887 Geri Spring, West Cristentown, KY 54855

Phone: +5934435460663

Job: Central Hospitality Director

Hobby: Yoga, Electronics, Rafting, Lockpicking, Inline skating, Puzzles, scrapbook

Introduction: My name is Clemencia Bogisich Ret, I am a super, outstanding, graceful, friendly, vast, comfortable, agreeable person who loves writing and wants to share my knowledge and understanding with you.