SPECIAL AGENT HANDBOOK CHAPTER 15 USCS OI SPECIAL AGENT HANDBOOK CONTROLLED DELIVERIES April 3, 1997 Otiicial Use Only I CONTROLLED DELIVERIES CHAPTER 15 15.01.00 PURPOSE This chapter provides policies, procedures, legal considerations, and definitions pertaining to the planning and execution of controlled deliveries. 15.02.00 OVERVIEW Special Agents in Charge (SACs) are responsible for ensuring that all personnel within their jurisdictions implement the provisions of this chapter. A controlled delivery (including a cold convoy) is a highly effective investigative technique involving the transportation of contraband to suspect violator while it is under the direction or surveillance of law enforcement officers (LEOs). The contraband may be discovered subsequent to a seizure at the United States (US) border or through other investigative means such as undercover (UC) operations. Controlled deliveries are conducted to: • Identify, arrest, and convict violators. • Disrupt and dismantle criminal organizations engaged in smuggling contraband across US borders. • Broaden the scope of an investigation, identify additional and higher level violators, and obtain further evidence. • Establish evidentiary proof that the suspects were knowingly in possession of contraband. • Identify the violator’s assets for consideration in asset forfeiture. 15.03.00 PLANNING The case agent in the originating office should consider the following when planning a controlled delivery: • Consult the United States Attorney’s Office (USAO) in the originating and receiving judicial districts to ensure coordination and to determine the prosecution potential of the controlled delivery. The USAO must be advised of controlled deliveries involving arrests or seizures in accordance with 19 USC 1603. Special Agent Handbook - 1 - Law Enforcement Sensitive April 3, 1997 • Substitute “sham” in place of narcotics (leaving a testable quantity) when possible and approved by the USAO. • Ensure coordination between the originating, transited, and receiving SACs. • Obtain court orders for non-consensual communication interceptions when using electronic tracking devices as necessary. (See Section 15.03.01, Electronic-Tracking Devices.) • Obtain consensual communication interception approvals as necessary. • Advise the USCS National Law Enforcement Communications Center (NLECC), Operations Division, prior to the start of a controlled delivery. This notification will enable NLECC to coordinate their resources and provide satisfactory technical support throughout the operation. • Prepare an Operational Plan (see Appendix A) and briefing sheet detailing each special agent's assignment. • Consider surveillance requirements: o Aerial surveillance o Voice privacy radios o Portable radios for state and local participants o Assignment of surveillance team members to watch for counter surveillance • Assess specialized equipment needs. • Obtain and evaluate information on the delivery location as well as photographs, fingerprints, vehicle registrations, property ownership, National Crime Information Center (NCIC) data, and criminal histories of the suspect parties. • Obtain facts to establish probable cause for warrants. • Obtain all pertinent information from the Office of Field Operations personnel at the Port of Entry (POE) including entry documents. Statements may be in draft form. • Brief participants involved in the delivery. (Consider conference calls with personnel at receiving office.) • Designate state and local LEOs operating outside their areas of responsibility as United States Customs Service (USCS) officers under 19 USC 1401 (i) or request that they assist USCS pursuant to 19 USC 507. • Substitute a UC LEO or a reliable confidential informant for the arrested subjects if practical. Ensure that UC LEOs have appropriate UC identification. • Assign a UC LEO to transport the conveyance to the proximity of the delivery drop off location unless counter surveillance would compromise the operation. The cooperating defendant may then transport the conveyance the remainder of the distance to the drop off location at the direction of the controlling LEO. • Prepare the conveyance to the extent practical by: o Applying identifying marks on the conveyance. o Searching the conveyance. o Installing a kill switch capable of disabling the engine on the conveyance from surveillance team vehicles or aircraft. NOTE: The operator should activate the kill switch when the conveyance is stationary. If this is not possible, the operator must consider the risks to the public before attempting to stop a moving conveyance. o Installing appropriate recording devices in the conveyance. Special Agent Handbook - 2 - Law Enforcement Sensitive April 3, 1997 NOTE: The recording device must be deactivated if the vehicle is turned over to the suspects. Otherwise the interception of communications would become non- consensual and require court orders. o Installing electronic tracking devices. (See Section 15.03.01, Electronic-Tracking Devices.) 15.03.01 ELECTRONIC TRACKING DEVICES The use of electronic tracking devices is governed by the Fourth Amendment and case law rather than by Title III. (See the US Department of Justice/Criminal Division Electronic Surveillance Manual.) If the device is to be installed inside a container or conveyance in which the suspect has a reasonable expectation of privacy, a search warrant or court order is required unless an exception to the warrant requirement exists (e.g., consent). Courts have held that installation of beepers in containers during a proper Customs border examination or on the outside of vehicles or containers while present on public roads, etc., does not require a court order or search warrant. If there is any doubt as to whether the installation of a tracking device constitutes a “search,” agents should obtain a search warrant and court order. If during the course of monitoring, the container or conveyance travels into a location which carries a reasonable expectation of privacy (e.g., a garage, residence, business premises not accessible to the public, etc.), a search warrant or court order is required before monitoring may continue. Because it is often difficult to determine where a container or conveyance may travel, it is recommended that a court order or search warrant be obtained in advance whenever possible. (See Law Course for Customs Officers, Section 2.424g [1995].) 15.04.00 INITIATION When Customs inspectors discover contraband, they must notify OI before taking any action. OI special agents will assess the situation to determine the feasibility of a controlled delivery by: • Determining a violator’s willingness to become a cooperating defendant. • Attempting to identify the intended recipient, destination, route and mode of travel, communication procedures, etc. • Contacting state and local law enforcement agencies (LEAs) to obtain local intelligence and addresses connected to the violator. (This is the responsibility of agents in the receiving office.) • Considering the feasibility of a continuous surveillance to the final destination. • Weighing the Federal, state, or local prosecutorial and investigative potential in the delivery and originating locations. • Judging whether a delay or an extensive search may preclude a controlled delivery. The case agent in the originating office will coordinate the controlled delivery with agents in the transited and receiving offices when the destination becomes known. Special Agent Handbook - 3 - Law Enforcement Sensitive April 3, 1997 The respective USAOs will determine the venue for prosecution with input from the SAC offices involved. Operational control of the investigation will be determined by the probable venue. 15.05.00 RESOURCE REQUIREMENTS As a controlled delivery moves cross-country, a senior special agent (or higher-graded agent) will direct the surveillance and ensure frequent communication with the originating, transited, and receiving offices. This agent will make operational decisions regarding security, manpower assignments, and continuation of the controlled delivery. However, once a controlled delivery is delayed en route (other than for routine food, fuel, and rest stops), the SAC providing resources in the area of the delay will decide operational matters in conjunction with the originating and receiving SACs. The SAC in the area of the delay may authorize arrests and seizures or take down a controlled delivery only when personal safety or the security of the contraband is jeopardized. This take down must be coordinated with the receiving office. The receiving SAC is responsible for providing resources and ensuring the security of the contraband to its destination. Group supervisors must schedule work shifts as soon as possible to avoid disruption of other case activities. The case agent should coordinate the delivery with Federal, state, and local LEAs. The following factors necessitate strict attention to resource allocations: • The controlled delivery and subsequent search warrant can require the dedication of substantial personnel and equipment. • Surveillance activities can be lengthy and geographically broad. Although the nature of the contraband, the method of its introduction into the US, and actions taken by LEOs may require changes in tactics, procedures for all controlled deliveries are the same. The following section explains the different types of controlled deliveries. 15.06.00 TYPES OF CONTROLLED DELIVERIES 15.06.01 Controlled Deliveries with Cooperating Defendants