This section provides guidance to special agents as to what to do before, during, and after making an arrest. The section also provides information regarding domestic fugitives, wanted persons, and international fugitives. The following will be discussed in this section:

During most investigations, it will be advantageous to wait until after filing information or receiving an indictment to make an arrest. The time limit under the Speedy Trial Act starts to run at the time of an arrest. Arrests should be made only in situations where the investigation would be in jeopardy if an arrest were not made or when an arrest warrant has been issued.

Special agents will not normally make warrantless arrests except under exigent circumstances, such as a physical attack on an employee or forcible rescue of seized property in the presence of the special agent (see subsections 9.4.12.3, and 9.4.12.7). An arrest warrant lessens the likelihood of a complaint of false arrest being filed against the arresting special agents.

Special agents may request and execute an arrest warrant. The special agent will be responsible for recommending to the Special Agent in Charge (SAC) the merits of Criminal Investigation (CI) requesting the issuance and execution of an arrest warrant. Upon the concurrence of the SAC, the special agent will forward the request to the attorney for the government. In approving requests, the SAC will consider the strict time provisions of the Speedy Trial Act. In other circumstances, CI will execute an arrest warrant only upon the request of the attorney for the government.

Special agents have statutory authority to make arrests with or without a warrant.

Arrest means to take custody of a person accused of a crime for the purpose of holding or detaining him/her to answer a criminal charge.

The procedures for securing an arrest warrant are dependent upon the following factors:

In situations when arrest is appropriate, it is preferable to receive an indictment, prior to the issuance of an arrest warrant. This avoids many problems including the early release of the evidence during preliminary hearings. Such hearings inevitably result in the release of information which otherwise would not have been disclosed until much later.

After an indictment, there is no preliminary hearing or probable cause hearing because the grand jury has already determined probable cause (see Fed. R. Crim. P. R 5.1).

The issuance of bench warrants may be discouraged by attorneys for the government. It is widely believed that such warrants should only be used where there is a genuine flight risk or reason to believe the defendant is a danger to the community. There may be other reasons justifying arrest including planned simultaneous searches which may counterbalance the reluctance of an attorney for the government regarding the issuance of warrants.

With the issuance of warrants, there is a concern that the government may appear to be overreaching. Absent a strong basis for a warrant, attorneys for the government may prefer to have the defendant appear for a warrant, via the issuance of a subpoena.

The decision to issue an arrest warrant is the responsibility of the attorney for the government.

The SAC of the special agent making the arrest should review and approve the Arrest Checklist. See Exhibit 9.4.12-1, Arrest Checklist, Form 13638, as well as the Risk Assessment Guide, Exhibit 9.4.12-8. The risk assessment guide requires the approval of the SAC prior to execution of the arrest warrant. The arrest checklist and risk assessment guide will be maintained in the investigative file (see subsection 9.4.12.15.1).

A special agent planning an arrest will ensure the following is addressed:

Special agents will not use force to accomplish a recovery of property in forcible rescue investigations; however, they may make an immediate arrest (without an arrest warrant) when the forcible rescue takes place in their presence.

Special agents should consider all available options before making the decision to arrest. Specifically, the special agent should:

In many instances, withdrawal from the scene and applying for an arrest warrant may be the best alternative, particularly in a volatile situation.

Regardless of the decision, if a forcible rescue occurs, the facts and circumstances should be immediately reported to the SAC. If an arrest is not made, the SAC will discuss the issue with Criminal Tax (CT) Counsel. If the decision is made to obtain an arrest warrant, the request will be made to the attorney for the government.

Special agents should not become involved in emergency driving in forcible rescue investigations. Sufficient facts will normally exist for special agents to subsequently obtain an arrest warrant without endangering the lives of others by engaging in emergency driving (see Directive No 7 - Emergency Driving in IRM 9.1.4, Criminal Investigation Directives).

In the event a physical attack is made upon an IRS employee, special agents may arrest the attacker using only such force as is reasonable and necessary in accordance with the provisions outlined in IRM 9.2.3, Use of Force Procedures.

Generally, special agents will not have occasion to arrest a juvenile for a violation of the Internal Revenue laws.

A foreign national is defined as any person who is not a United States citizen.

Treaty obligations of the United States require Federal law enforcement officers to notify certain foreign authorities when foreign nationals have been arrested or detained in the United States.

To ensure that Americans abroad obtain the treatment to which they are entitled, it is essential that the United States not violate any of its obligations under these treaties.

When special agents arrest or otherwise detain a foreign national, the arresting special agent must promptly inform the detainee of his/her right to have his/her government informed of such event and that he/she has a right to consular access. In most cases, the foreign national has the option to decide whether to have consular officials notified. Some agreements with certain countries require mandatory notification when their nationals are arrested or detained. See Exhibit 9.4.12-2, Mandatory Notification Countries and Jurisdictions. In these instances, the foreign national has no choice regarding notification and the arresting or detaining special agent will notify the consulate or the embassy of the situation without delay. See Exhibit 9.4.12-3, Suggested Statements to Arrested or Detained Foreign Nationals, which provides suggested statements that may be used to advise foreign nationals of consular rights.

If the detainee requests notification, the arresting or detaining special agent must ensure that notification is immediately given to the nearest consulate or embassy of the detainee's country. The physical addresses and telephone/fax numbers of the foreign consular offices in the United States can be obtained from the internet site, http:www.state.gov.

Foreign consular officers have the right to visit their nationals who are in prison, custody, or detention, to converse and correspond with them and to arrange for their legal representation, unless the person being held expressly opposes these actions. They must refrain from acting on behalf of a foreign national if the foreign national opposes their involvement. In addition, consular officers may not act as attorneys for their nationals.

Special agents should keep written records sufficient to show compliance with the notification requirements. These records should show all notifications to foreign consular representatives. In addition, in cases in which notification is at the discretion of the detained foreign national, these records should show that the foreign national was informed of the option of consular notification, the date when the foreign national was so informed, and whether or not the foreign national requested that consular officials be notified. If confirmation of receipt of notification is available, it should be saved if possible. See Exhibit 9.4.12-4, Suggested Fax Sheet for Notifying Consular Officers of Arrests or Detentions, for an appropriate document to record compliance with the notification requirements.

In situations where an arrest is made in a wagering occupational tax investigation, the SAC will ensure that related investigations involving any wagering excise tax investigations and those Title 18 violations delineated in IRM 9.1.3, Criminal Statutory Provisions and Common Law, committed in contravention of the Internal Revenue laws are completed promptly. All related violations can then be prosecuted concurrently, in order to comply with the strict time provisions of the Speedy Trial Act and to avoid dual prosecution problems.

After the arrested person is in custody, special agents must follow certain processing procedures.

Special agents will not delay an arrested person’s appearance before a US Magistrate for the purpose of an extensive interview or attempting to obtain a statement. However, if the statement can be obtained without unnecessary delay and if the person arrested is willing to make a statement, it should be recorded subject to the procedures and safeguards outlined in IRM 9.4.5, Interviews.

IRM 9.4.5 is also applicable to interviews of arrested persons in custody of local authorities.

Prior to questioning a person arrested by local or state authorities, special agents should determine whether the local authorities gave an adequate constitutional warning.

If no warning was given by local authorities, or if their warning was incomplete, a standard pre-interview warning by the special agents may not be sufficient to assure the admissibility of statements made by the arrested person.

In this situation, the special agents may have to take additional precautions to dispel the impression that the interviews by local authorities and by the special agents are really a single, continuous period of questioning.

This may be accomplished by:

Criminal Tax should be consulted to resolve questions concerning the adequacy of constitutional warnings given by local or state authorities and to assist special agents in selecting appropriate measures to counteract any apparent deficiencies.

Whenever feasible, special agents should obtain fingerprints and photographs of the arrested person. If adequate equipment and skilled personnel are available, the fingerprinting and photographing should be done by CI. Otherwise, it may be done by an officer of any other law enforcement agency having the necessary equipment. In addition, special agents perfecting arrests will have to obtain a Buccal DNA cheek swab from the arrestee.

A special agent who makes an arrest, whether with or without an arrest warrant, must take the arrested person, without unnecessary delay, before the nearest available US magistrate or other nearby officer empowered to commit persons charged with offenses against the laws of the United States. If the arrest was without an arrest warrant, a complaint must be filed (see Fed. R. Crim. P. 5).

Special agents must immediately inform their Supervisory Special Agent (SSA) of any arrests they make. The SSA will, in turn, immediately report such information to the ASAC/SAC.

When it is necessary to make an arrest prior to consulting the attorney for the government, he/she shall be notified promptly of the arrest, advised fully of the facts in the investigation, and requested to represent the government in the preliminary examination before the US magistrate.

In addition to the reporting procedures set forth in paragraphs 1 and 2 above, the special agent will prepare a Form 1327–A, (see Exhibit 9.4.12-5, Arrest Report, Form 1327-A) before the close of the next business day following the arrest. Upon approval by the SAC, the following distribution will be made:

If the arresting special agents believe valid reasons exist for opposing release of the arrested person on personal bond, these reasons should be brought to the attention of the attorney for the government prior to the bail hearing. The attorney for the government may request that the special agent prepare a Bail Reform Act Form No. 1, AO–201, for use at the hearing. The form is available at the Clerk's Office for each US district court. The original will be furnished to the attorney for the government and a duplicate will be retained in the investigative file.

Arrests are to be reported in the Criminal Investigation Management Information System (see IRM 9.9.4, CIMIS Data Fields).

When it is determined that a subject is a fugitive or wanted person, the special agent must request an entry be made by Headquarters (HQ) to Treasury Enforcement and Communication System (TECS) and by the US Marshals Service (USMC) to FBI's National Crime Information Center (NCIC). In addition, a current photograph of the fugitive should be submitted in electronic format (jpg) to the *CI HQ-TECS mailbox. Wanted circulars may be requested by the field office SAC, to the US Marshals Service, but only on fugitives who are charged with felony violations (see IRM 9.4.12.17.4).

Entry of Federal fugitives in the NCIC Wanted Person File and TECS should occur within 24 hours after:

Modifications, clearing, locating, or cancellation of a fugitive's NCIC and TECS records must occur within 24 hours after receipt of the information prompting the change.

When information is received in any CI office that a fugitive or wanted person has been apprehended, for any reason whatsoever, the arresting authorities will be requested to hold the individual for further action by the IRS or the person holding the warrant or commitment papers. The CI official who learns that a fugitive or wanted person has been apprehended shall telephone the 24-hour number of the field office where the individual is wanted, and the Director, Warrants and Forfeitures. This is to ensure that the person holding the warrant or commitment papers can be immediately notified of the detention. In those instances where the above officials are notified telephonically, the notifying CI official will follow up with a written notification to them. The special agent participating in, verifying, or making the arrest will promptly update the Criminal Investigation Management Information System (CIMIS). The SAC, of the field office where the fugitive is wanted, shall follow up to ensure appropriate handling of the fugitive. Thereafter, he/she shall submit a brief report to the Director, Warrants and Forfeitures, detailing the action taken. This report will also include a request to delete the TECS and NCIC entry. (Steps should also be taken to cancel any existing Wanted Circular with HQ or USMC regarding the fugitive.)

When the SAC of the field office where the fugitive is wanted learns that the fugitive is located in another field office, he/she will immediately notify the SAC of the other field office as to the location of the fugitive and will furnish all available information necessary for the apprehension of the fugitive. Where such notification is made by telephone with the request that the fugitive be arrested, confirmation should immediately follow by fax, so that the appropriate attorney for the government may have a documented request upon which to act. After the arrest has been made, the SAC shall submit a memorandum regarding cancellation in TECS to the Director, Warrants and Forfeitures (CI:OPS:WF), and notify the US Marshals Service to remove the fugitive from NCIC. Both of these actions must be documented in the investigative file.

A supplemental report shall be prepared by the special agent when an individual fails to surrender to the court on the date stipulated. The report should set forth the facts in the investigation and recommend (if appropriate) that legal proceedings be instituted charging the individual with a violation of 18 USC §3146, Penalties for Failure to Appear. This action may materially aid CI to return, by extradition, individuals who have fled the country because a violation of 18 USC §3146 is usually an extraditable offense.

If it is believed that a fugitive has left the United States, a red notice may be issued by the International Criminal Police Organization (INTERPOL) to assist in locating the fugitive. Such notices may also assist, depending on the law of each INTERPOL member country, in having the fugitive detained so that US authorities may request extradition or other proceedings (e.g., expulsion, that may lead to the fugitive's return). A red notice may also be used when the fugitive is a national (including a dual national) of a country that does not extradite its citizens, if the fugitive has fled to that country but may later travel outside its borders. To request a red notice, contact the IRS-CI representative at the INTERPOL-US National Central Bureau (INTERPOL-USNCB) in Washington, DC, at telephone (202) 616-9000, telefax (202) 616-8400.