7 August 2001
Source: http://www.irs.ustreas.gov/prod/bus_info/tax_pro/irm-part/part09/36209a.html

See contents of full IRS Handbook of Criminal Investigation: http://cryptome.org/irs-ci/irs-ci.htm

Handbook 9.4
Investigative Techniques


Chapter 6
Surveillance and Non-Consensual Monitoring

Contents

[9.4] 6.1  (03-02-1999)
Overview

  1. Enforcement activities include a wide spectrum of Criminal Investigation (CI) activities. Surveillance is an enforcement technique used to obtain information, leads, and evidence. CI surveillance techniques include:
    1. Physical visual.
    2. Electronic.
    3. Video.
    4. Aerial surveillance.
  2. This chapter covers the following topics:
    • General
    • Surveillance and Undercover Distinguished
    • Surveillance at Public Meetings
    • Surveillance Checklist
    • Risk Assessment Guide
    • Electronic Surveillance
    • Restrictions on Electronic Surveillance Techniques
    • Video Surveillance
    • Aerial Surveillance
    • Report of Information Received from State and Local Agencies

[9.4] 6.2  (03-02-1999)
General

  1. The following applies to CI surveillance techniques:
    1. Surveillance may be conducted under a Subject investigation, and when included within the scope of a General or Primary Investigation.
    2. Only 1811s will conduct surveillance.
    3. Except as provided in paragraph (d) below, a journeyman-level special agent (GS-1811-12 and above) may conduct surveillance as deemed necessary. A special agent below the journeyman level must obtain prior approval from the Group Manager for all surveillance activity except when the occasion arises where immediate surveillance is necessary and the Group Manager cannot be contacted. In this instance, the agent should advise the group manager as soon as practicable of the circumstances which precluded obtaining prior approval.
    4. If during the surveillance, the special agent must assume an identity other than self and cover documents are required, approval for use of these documents must be obtained from the District Director or designee. (See Investigative Technique Handbook 9.4, Chapter 8, Undercover Operations concerning cover documents and or pseudonyms.)
    5. Surveillance conducted in a high crime area, either on foot or in a vehicle, requires the participation of at least two agents. Surveillance requiring the use of a vehicle should be conducted in government-owned vehicle that has two-way radio equipment.

[9.4] 6.2.1  (03-02-1999)
Notes of Surveillance Activity

  1. The following are required:
    1. Daily notes of pertinent activity of person surveilled; and
    2. Written summary of notes at the completion of surveillance, to be filed with any other document prepared, i.e., information item, etc.

[9.4] 6.2.2  (03-02-1999)
Reasons for Conducting Surveillance

  1. The following are some of the reasons for conducting a surveillance:
    1. To obtain evidence of a crime or to identify persons who have indicated they have committed or intend to commit a crime.
    2. To locate persons by watching their haunts and associates.
    3. To obtain detailed information about a subject's activities.
    4. To check on the reliability of informants.
    5. To locate hidden property.
    6. To obtain probable cause necessary to secure a search warrant.
    7. To obtain information for later use in interrogations or interviews.
    8. To develop leads and information received from other sources.
    9. To know at all times the whereabouts of an individual.
    10. To obtain admissible evidence for use in court.

[9.4] 6.3  (03-02-1999)
Surveillance and Undercover Distrinquished

  1. It is important to distinguish between investigative techniques used in surveillance activities and certain undercover operations.

[9.4] 6.3.1  (03-02-1999)
Surveillance Characteristics

  1. The following characteristics apply to surveillance:
    1. The purpose is to observe ongoing activities and individuals.
    2. Interaction with subjects and third parties is usually not initiated. (The Chief, CI, pursuant to the provisions of Investigative Technique Handbook 9.4, Chapter 7 entitled Consensual Monitoring, may authorize the monitoring and recording of telephone calls.)
    3. Conversations are incidental to the surveillance.
    4. Conversations are not monitored or recorded, except as set forth in (b) above.
    5. The special agent has limited cover, used to protect the integrity of the surveillance.
    6. Local special agents are used.
    7. Special agents need not be trained in undercover techniques.
  2. Initiated surveillance activity bears little resemblance to an undercover operation. The following situations indicate the surveillance activity evolved into an undercover operation:
    1. The activity continues for an extended period, and begins to focus on certain individuals.
    2. Reliance on cover identities increase.
    3. Contacts with targets and other individuals are more in-depth.
    4. Agents become participants rather than observers of the activities of interest.
  3. The Chief, CI, is responsible for ensuring that surveillance activities do not evolve into undercover operations, without first obtaining the authorization required in Investigative Technique Handbook 9.4, Chapter 8, Undercover Operations. Consider obtaining an undercover authorization and use trained undercover agents in situations in which it is highly likely that a surveillance will evolve into an undercover operation.

[9.4] 6.3.2  (03-02-1999)
Undercover Operation Characteristics

  1. The following characteristics apply to undercover operations:
    1. The purpose is to initiate or participate in activities with identified targets.
    2. Interaction with subjects and third parties is sought.
    3. Undercover agents or other authorized individuals initiate and direct conversations to further the objectives of the operation.
    4. Conversations may be monitored and recorded.
    5. The undercover agent has a documented cover. This cover is used as a basis for contacts with targets or witnesses. The lack of a documented cover does not mean the activities engaged in do not constitute an undercover operation.
    6. Trained undercover agents are suitable for this operation; in most cases local special agents should not be used.
    7. The services of a Confidential Informant can be utilized to perform undercover activities.

[9.4] 6.4  (03-02-1999)
Surveillance at Public Meetings

  1. The attendance at such public meetings is to be distinguished from peaceful demonstrations directed toward some sort of demonstration against the 16th Amendment. Treasury department policy directs that no information should be collected on peaceful demonstrations which involve the exercise of First Amendment rights without contacting the office of the Assistant Secretary of the Treasury for Enforcement. In such situations, the Chief CI, with the concurrence of the District Director and the Director of Investigation, CI, for that region, will notify the Assistant Commissioner, CI, who will contact the Assistant Secretary of the Treasury for Enforcement.
  2. Surveillance activities at public meetings which promote actions in violation of the Internal Revenue Code will be limited to:
    1. Identifying leading figures in the meeting.
    2. Obtaining information concerning new techniques to violate tax laws.
  3. Special agents may identify those individuals who attend the meetings who admit or indicate that they:
    1. Have committed or intend to commit a tax violation or other crime;
    2. Advocate that others commit violations of the tax law or commit other crimes;
    3. Advocate the use of threat or assault tactics in dealing with Service personnel or other federal, state, or local law enforcement personnel.
  4. An example of an appropriate surveillance technique for identifying those individuals who attend the meetings and admit or advocate the violation of laws or express an intent to do so is as follows:
    An unidentified member in the audience at a public meeting states that he/she has not filed Federal Income Tax Returns for several years, and further states that he/she never intends to file such returns again. Special agents may observe this person enter an automobile and record the license plate number on the automobile in order to attempt to properly identify him or her. If there is a likelihood that the individual is driving a borrowed or leased automobile or is riding with someone else, the agents may continue the surveillance to attempt to establish a positive identification.

[9.4] 6.4.1  (03-02-1999)
Public Meetings Defined

  1. Case law has established the characteristics of a public meeting. United States v. Tijerina found substantial support in the record that the meeting was public. The meeting was attended by two newspaper reporters and a radio newscaster. The civic auditorium was set up with a television camera and a loud speaker system. Invited guests were admitted to the meeting after paying a $2.00 admission fee and identifying themselves. Between 200 to 600 individuals were estimated to have attended. Based on Tijerina, the following criteria may be considered to determine whether or not a meeting is public:
    1. Where the meeting will be held.
    2. If members of the press will be present or involved.
    3. If there are unreasonable restrictions upon entry.
    4. How many people will be present.
    5. Has public notice of the meeting been given.

[9.4] 6.4.2  (03-02-1999)
Recording The Proceedings Of Public Meetings

  1. Recording the proceedings of a public meeting is a permissible means of surveillance. It is important to establish that the meeting is public

[9.4] 6.5  (03-02-1999)
Surveillance Checklist

  1. The special agent in charge of a surveillance operation is responsible for reviewing the surveillance checklist (Exhibit 9.4.6-1). If the surveillance involves an undercover operation, refer to the applicable undercover checklist.

[9.4] 6.6  (03-02-1999)
Risk Assessment Guide

  1. The risk assessment guides are used to assess the potential risk in any enforcement operation. The assigned special agent and Group Manager should prepare the risk assessment. Consider utilizing the assistance of a third party not assigned to the case to provide objectivity.
  2. Comment on each of the considerations and record the level of risk (low, medium, or high) for each consideration.
  3. After reviewing the comments and the assigned level of risk, determine whether the enforcement operation can be accomplished safely. If it is decided that the enforcement operation cannot be accomplished safely, abandon any further planning activity (Exhibit 9.4.6-2.)

[9.4] 6.7  (03-02-1999)
Electronic Surveillance

  1. The following section refers to electronic surveillance and the monitoring of electronic communications.

[9.4] 6.7.1  (03-02-1999)
General

  1. The Electronic Communications Privacy Act (ECPA) of 1986, Public Law No. 99-508, effective January 1987, amended Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 USC 2510 et. seq.). This legislation is a comprehensive revision of Title III and provides coverage for the technological advances developed in the area of electronic communications. The offense for which interceptions of communications provided for in this legislation can be authorized by court order are listed in 18 USC 2516. ECPA is divided into three parts:
    1. Title I--Interceptions of Communications and Related Matters;
    2. Title II--Stored Wire and Electronic Communications and Transactional Records access;
    3. Title III--Pen Registers and Trap-and-Trace Devices.
    NOTE:
    What was previously referred to as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 USC 2510 et. seq.) is now called Title I.
  2. This legislation does not authorize wiretaps to investigate the tax crimes of Title 26 of the Internal Revenue Code, but does authorize wiretaps to investigate violations of sections 1956 and 1957 of Title 18 (money laundering offenses) and section 5322 of Title 31 (currency reporting offenses).
  3. Internal Revenue Service policy does not provide authorization for the interception of Title I oral or wire communication, except in extremely limited situations. It does, however, provide for the use of Title I oral or wire communication once it has been obtained by other law enforcement agencies.

[9.4] 6.7.2  (03-02-1999)
Title I--Scope

  1. Title I only covers situations where the contents of wire, oral and electronic communications are sought to be intercepted through the use of electronic, mechanical, or other devices, and where no participant consents to such interception. This statute was formerly called Title III.

[9.4] 6.7.2.1  (03-02-1999)
Definitions

  1. Contents , as defined by Title 18 USC 2510 (8), include any information concerning the substance, purport or meaning of any wire, oral or electronic communication.
  2. A wire communication is defined as a communication that involves the use of wire, cable, or like method with the human voice at some point in the transmission. (See 18 USC 2510 (1) and (18)) In addition, tone-voice pagers are included within the category of wire communication, and interception of the human voice segment must be treated the same as a wire interception. A conversation on a telephone is a wire communication.
  3. An oral communication means "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations, but this term does not include any electronic communication. A conversation between two or more individuals who have a reasonable expectation of privacy, is an oral communication."
  4. An electronic communication is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic, or photo-optical system that affects interstate or foreign commerce." Electronic communication are those which do not contain the human voice at any point during the transmission. An oral communication can never be an electronic communication. This category includes systems such as digital display pagers; electronic mail; electronic bulletin boards; computer-to-computer transmissions; facsimile transmissions and private video transmissions (but not video surveillance). Electronic fund transfers are electronic communications.
    NOTE:
    ECPA sets forth procedures for interception of electronic communications while in transmission (Title I) as well as access to stored (Title II) electronic communications.
  5. Interception means "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use on any electronic, mechanical, or other device."
  6. Electronic, mechanical or other device is defined by 18 USC 2510(5) to include "any device or apparatus which can be used to intercept a wire, oral or electronic communication other than:"
    1. Any telephone or telegraph instrument, equipment or facility, or any component thereof (i) furnished to the subscriber or user by a provider of wire or electronic communication service and used by the subscriber or user... in the ordinary course of its business or (ii) being used by a provider...in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of his duties;
    2. A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
    NOTE:
    Merely overhearing a conversation, even if done by someone picking up an extension telephone or using a normal hearing aid, is not considered an interception.
  7. Consent is defined to mean that one or more of the parties to a wire, oral or electronic communication has given their prior permission that such communication may be intercepted. Consent is valid even if less that all of the parties consent and even if the non-consenting parties are unaware that one among them has given consent.

[9.4] 6.7.2.2  (03-02-1999)
Not Covered by Title I

  1. Title I does not cover the following:
    1. Consensual monitoring--where one of the parties to the conversation consents.
    2. Interception where the contents of the conversation are not monitored (i.e. pen register or a trap and trace).
    3. The overhearing of conversations without the aid of electronic, mechanical, or other devices.
    4. Radio or television broadcasts readily accessible by the public.
    5. Tone-only pagers.
    6. Electronic Tracking Devices, also called Transponders or Beepers.
    7. Marine and aeronautical communication systems per Title 18 USC 2511 (2) (g) (ii) (IV).
    8. Public safety radio systems.
    9. Amateur radio operator services, citizens band; general mobile radio services.
    10. Electronic communications which are readily accessible by the general public.
    11. Physical visual surveillance.
    12. Telephone extensions.
  2. If Title I does not apply, other statutes such as Titles II and III, may still apply. Failure to comply with them may result in criminal sanctions or civil liability to the government. Fourth Amendment and privacy issues may also be present in cases which do not involve Title I.

[9.4] 6.7.2.3  (03-02-1999)
Disclosure and Derivative Use Orders

  1. A Title I wiretap can only be used to obtain evidence of certain enumerated offenses. However, the wiretap may intercept conversations concerning other crimes. Title 18 USC 2517 sets forth a statutory scheme under which disclosure and use of intercepted oral or wire communications are permitted.
  2. Title 18 USC 2517 (1) permits law enforcement officers who obtain wiretap evidence to turn such evidence over to other law enforcement officers for the latter's use.
  3. Title 18 USC 2517 (2) permits the receiving law enforcement officer to use wiretap evidence in their official duties, such as issuing summonses; obtaining jeopardy assessments; investigating tax offenses or preparing a Special Agent's Report.
  4. Wiretap evidence of enumerated crimes can also be used in both civil and criminal cases if an order under Title 18 USC 2517 (5) is obtained.
  5. Title 18 USC 2517 (3) and (5) authorize the disclosure and use of otherwise intercepted offenses by law enforcement officers who are engaged in the interception. The section also authorizes the receiving law enforcement officers to use the evidence before a grand jury; in court or any other proceeding; or they may disclose it via testimony.
  6. Title 18 USC 2517 (5) requires a court order, referred to as a derivative use order, permitting such disclosure as soon as practicable after the law enforcement officer releases the information. The derivative use order must be based upon the court's finding that the evidence of the unenumerated crime (i.e. tax offense) was otherwise (properly) intercepted. Failure to obtain such an order can result in dismissal of the case, or liability for civil damages due to unauthorized disclosure.
  7. If a federal court authorized the original wiretap, then the same court must issue the order. If a state court authorized the wiretap, than that particular court must issue the order.

[9.4] 6.7.2.4  (03-02-1999)
Title I Information Obtained by Other Agencies--Offers to be Accepted

  1. Special agents are qualified to receive and use Title I information obtained by other agencies because they qualify as law enforcement officers as defined by Title 18 USC 2510 (7). In certain situations, they may investigate several of the violations enumerated in Title 18 USC 2516. Title I information, once received, can be used for any purpose within the scope of official duties (Title 18 USC 2517 (1) and (2)).
  2. Title I information may be accepted in all cases where the electronic installation was operated by another federal agency. Title I information from state and local installations will be accepted where the installation was authorized pursuant to Title 18 USC 2518. Prior to use of the Title I information in an investigation, an order pursuant to Title 18 USC 2518 and Title 18 USC 2517 (5) will be sought as required.
  3. Title I information for state and local electronic installations will be accepted where a supervisory attorney determines that the local installation met federal requirements and secures an order in the nature of the one prescribed by Title 18 USC 2517 (5). The term supervisory attorney includes a state or local attorney who occupies, under the applicable state statute, a position comparable to the supervisory attorney in federal installations. For these state and local installations, application for an order in the nature of a Title 18 USC 2517 (5) order should be made to the court which authorized the electronic surveillance. Prior to accepting information from state and local installations, the Chief, CI, should discuss with District Counsel the propriety of accepting information in order not to taint an investigation.

[9.4] 6.7.2.5  (03-02-1999)
Evaluation of Title I Information

  1. Transcripts, or excerpts from transcripts, from Title I information, gathered by other law enforcement entities, with potential use will be referred to the Chief, CI, or designee who should immediately evaluate its potential for criminal and civil tax purposes.
  2. If apparent that the information will be used in a criminal judicial proceeding, the Chief, CI, or designee should immediately ascertain whether an 18 USC 2517 (5) order covering use by the IRS has been obtained. If an order has not yet been obtained, the Chief or designee should make arrangements with the supervisory attorney to obtain it as soon as practicable.
  3. Should the Title I information appear to have no criminal potential but may have some important or significant effect on the determination or collection of the tax liability, the Chief or designee will transmit the Title I data by memorandum to the district Examination or Collection function only after a court order has been obtained. This court order must be obtained pursuant to Title 18 USC 2517 (5). Once the information is passed on to the Examination or Collection function, the receiving division should be advised to segregate the Title I information and its derivative product to the extent possible. This will enable a tracing of adjustments back to their Title I sources.
  4. Should the Title I information not have a significant effect on the determination or collection of the tax liability, the information should become part of in the CI background file. Title I information will not be forwarded to the Examination or Collection function for civil use unless authorized by court order.

[9.4] 6.7.3  (03-02-1999)
Title II--Stored Electronic Communications

  1. Title II pertains to Stored Wire and Electronic Communications and Transactional Records Access and addresses access to stored electronic communications and transactional records. It is patterned after the Right to Financial Privacy Act, Title 12 USC 3401, in that it balances privacy interests in personal and proprietary information, with the government's legitimate law enforcement needs. It establishes procedures for obtaining this information.
    NOTE:
    If access is sought to obtain stored wire information, such as a telephone answering machine which contains a human voice, a Title I order is required. Title II of ECPA only covers stored electronic communications.

[9.4] 6.7.3.1  (03-02-1999)
Electronic Communications in Storage

  1. Electronic communications which are in storage includes storage of electronic messages both before and after transmission; backup copies retained for re-access by the recipient; and backup copies used by the communications company. This category includes systems such as digital-display pagers, electronic mail and bulletin boards, computer to computer transmissions, telex transmissions, facsimile transmissions and private video transmissions but not video surveillance. The use of a pen register or a trap and trace device is governed by Title 18 USC, Sections 3121 through 3126. (See Title III--Pen Registers.)
  2. This statute also addresses a storage system called a "Remote Computing Services." These computer entities provide various electronic bulletin board services to customers or electronic data for future use or reference. Data is most often transmitted between these entities and their customers by use of electronic communications.
  3. Interception of electronic transmissions to tone-only pagers does not require a court order and may be authorized by the Chief CI. The tone-only pager emits a beep or other signal to inform the user that a message is waiting. The message can be retrieved by the user calling a predetermined number (usually an answering service). An authorization memorandum should be submitted for the Chief's approval.
  4. Interception of transmissions to tone-and-voice-pagers is governed by Title I of the ECPA (formerly Title III of the Omnibus Crime Control and Safe Streets Act of 1968) and is not authorized for Title 26 investigations. A tone-and-voice-pager enables callers to transmit short voice messages to a subscriber's pager. A caller first telephones the paging company and then dials or touch tones the subscriber's individual code. The caller is notified by a beep that a short time (9-15 seconds) remains to communicate a message into the phone. The computer captures both the individuals's code and the message. As soon as the radio frequency is clear, the computer broadcasts the message to the subscriber's pager, which self activates and beeps. The tone-and-voice-pager then remains on the air for a few seconds after code recognition to receive the audio message from the caller. After the message is sent, the computer erases it from its memory bank.
  5. The monitoring of display-pagers or the display only portion of a tone-and-voice-pager, and facsimile transmission is governed by Title I during transmission. Any monitoring activity of display pagers and facsimile transceivers during the transmission(s) requires the approval of the Assistant Commissioner, CI, an affidavit, an application (which must be approved by the Department of Justice), and a court order obtained in accordance with Title I.

[9.4] 6.7.3.2  (03-02-1999)
Disclosure of Stored Communications

  1. Title 18 USC 2702 prohibits disclosure of electronic communications by the party storing the information unless:
    1. The information is given to its intended recipient or addressee.
    2. The information is given to the government pursuant to court order; search warrant; subpoena.
    3. The subscriber/customer gives consent.
    4. The disclosure is to a facility used to forward the communication.
    5. The disclosure is incident to testing equipment or quality of service.
    6. The information was obtained inadvertently and it refers to a crime.

[9.4] 6.7.3.3  (03-02-1999)
Access

  1. Title 18 USC 2703 sets forth the requirements for government access to electronic communications in storage and in a remote computing service. This includes data stored in a display-pager. Utilize the following procedures to obtain:
    1. The contents of electronic communication while it is in electronic storage with an electronic communication service or remote computing service (e.g., phone numbers stored in a pager's temporary memory, electronically stored facsimile communications, stored e-mail, etc.) or
    2. Transactional information from an electronic communication service or a remote computing service (e.g., name, address, telephone toll billing records, telephone number, and other subscriber and customer identity and service information).
  2. If the contents of an electronic communication have been in storage for 180 days or less, the government must obtain a search warrant in order to have the carrier disclose the contents. The search warrant must be based on probable cause and notice is not required.
  3. If the contents of an electronic communication have been in storage for more than 180 days, or if the contents are stored in a remote computing service, Title 18 USC 2703 (b) sets forth the following requirements for obtaining access:
    1. Without notice to the subscriber or customer, the government must obtain a search warrant.
    2. With notice to the subscriber or customer, the government can use:
    1. An administrative or trial or grand jury subpoena.
    2. A search warrant pursuant to Rule 41.
    3. A disclosure court order.
  4. The statute also covers situations where the government seeks access to general information about a subscriber or customer, not the contents of their communications. This information, commonly referred to as transactional information, includes data such as the customer's schedules (times and days) of transmissions; the length and frequency of transmission; billing address; toll records; and unlisted numbers. This information can be obtained by:
    1. An administrative or trial or grand jury subpoena.
    2. A search warrant pursuant to Rule 41.
    3. A disclosure court order issued on relevancy.
    4. Consent from the customer or subscriber of the service.

[9.4] 6.7.3.4  (03-02-1999)
Approval/ Authorization

  1. The Chief, CI, may allow special agents to apply for court orders authorizing the interception of electronic communication in the investigation of felony violations and in the enforcement of the wagering tax laws. Court orders will be sought pursuant to the provisions of Title 18 USC, Sections 2516 (3) and 2518. The Chief will, with the approval of the District Director, obtain the approval of District Counsel on the legal sufficiency and form of affidavits in support of an application for a court order. If approved, the Chief will seek the endorsement of the U.S. Attorney or Strike Force Attorney about the decision to apply for a court order. Upon approval, a request will be submitted by memorandum to the Director of Investigations, CI, who, if in concurrence, will forward the request to the Assistant Commissioner, CI. An oral request for approval must be confirmed in writing and submitted within 2 working days after the oral request is made. After the request has been approved by the appropriate officials and returned by the Assistant Commissioner, CI, the Chief will contact the U. S. Attorney or Strike Force Attorney to apply for the necessary court order. This authorization will be forwarded together with the appropriate affidavit or application for court order to the U.S. Attorney's office for the Judicial District in which the interception is scheduled to take place.
  2. The request for approval should contain the following information:
    1. Investigation name and number and illegal activity code from the Criminal Investigation Management Information System (CIMIS) Users Handbook.
    2. The type of communications to be intercepted, including the identity of the person, if known, committing the offense and whose communications will be intercepted.
    3. Reasons for the interception, including a full and complete statement of the facts and circumstances relied upon to justify that an order be issued. Details should be provided as to the particular offense that has been, is being, or is about to be committed.
    4. Indicate whether or not other investigative procedures have been tried and failed or why they reasonably appear not likely to succeed.
    5. Names and titles of all persons who will install and have access to the equipment.
    6. State the exact days for which the authorization is sought, not to exceed 30 days. Include the date the surveillance will begin. (When the beginning date is set, consideration should be given to obtaining the necessary equipment and time for the request to be considered. If the beginning date is not known or if different from the authorized beginning date, the installer should notify the National Operations Division, Special Investigative Techniques (OP:CI:O:S) by telephone on the first workday after installation of the monitoring equipment.)
    7. Steps to be taken to provide security precautions.
    8. A statement that the U.S. Attorney or Strike Force Attorney is endorsing the decision to apply for a court order.
    9. Information regarding the substance of the case(s).
    10. A statement explaining the significance of the particular type of electronic communication in furthering the investigation of the alleged violation.
  3. Submit a request or memorandum through channels to the Assistant Commissioner, CI, when the following occurs:
    1. If the authorization is not utilized, explain the reasons why the authorization was not utilized and include the name of the cases for which authorization was sought by a memorandum.
    2. If an extension is necessary, summarize the results to date and the reasons the extension is necessary and submit a request for an extension no later than (5) days prior to the end of the prior authorization period. Include the exact number of days the authorization is to be extended.
    3. If the electronic communication being intercepted involves paging devices and it is determined that additional or different pagers need to be surveilled, submit a request setting forth the reasons. Include the new pagers to be monitored and the name(s) and address(es) of the subscriber(s). The request for an extension of time can be combined with this request if they occur simultaneously.

[9.4] 6.7.3.5  (03-02-1999)
Title III

  1. This type of monitoring is exempt from Title I requirements because it does not interfere with or seize the contents of communications. There are many kinds of devices used to conduct such monitoring but the most common are the pen register and the trap-and-trace devices. These non-conversational devices are covered by a separate statute entitled "Pen Registers and Trap-and-Trace Devices." Title 18 USC 3121-3126.
  2. Pen registers and trap-and-trace devices are subject to Fourth Amendment requirements when physical intrusion is needed for installation. Limited entries to install this equipment is permitted provided they are done pursuant to a valid search warrant or court order.

[9.4] 6.7.3.5.1  (03-02-1999)
Use of Pen Registers

  1. A pen register , which is also called a "Dial Number Recorder," is a mechanical instrument attached to a telephone line, usually at a central telephone office. A pen register:
    1. Records the outgoing numbers dialed by a particular telephone;
    2. Does not record whether an outgoing call is ever completed;
    3. Registers incoming calls by recording a dash for each ring of the telephone;
    4. Does not identify the telephone from which the incoming call originated.
  2. Use of pen registers is restricted to recording data of the dialing or signaling information necessary to direct or process a call. Pen registers may not be utilized for gathering transactional data (i.e. account numbers, amounts, etc.).
  3. If possible, use equipment that does not record transactional data. Transactional data may not be utilized without a court order and must be sealed until a court order is received.
  4. Pen registers and other types of telephone number recorders can be utilized only when authorized by court order and only in the following situations:
    1. Investigations involving a federal felony violation.
    2. Wagering tax investigations.
    3. Locating fugitives from justice who were the subject of investigation by CI. To obtain a pen register under this section, a fugitive from justice is defined as a person against whom criminal action (e.g., return of an indictment, filing of a complaint or information, or a conviction) has been taken, and who has fled the jurisdiction to escape prosecution or to avoid serving a sentence. Requests for pen registers to locate fugitives will be considered only for fugitives who are charged with felony violations.
  5. Butt sets may be used by an IRS employee to accomplish the installation of the pen register. See detailed procedures regarding the installation in 6.8.3.6. Pen registers and other types of telephone number recorders may be used in investigations involving felony violations related to Income Tax Preparers, Electronic Filers (ELF), Questionable Refund Program (QRP), and significant income tax investigations. Unless the Assistant Commissioner, CI, specifically approves, only IRS-owned pen registers and accessory equipment may be used.

[9.4] 6.7.3.5.2  (03-02-1999)
Request for Approval

  1. The Chief, CI, with the approval of the District Director, will seek the endorsement of the U.S. Attorney or the Strike Force Attorney to apply for a court order. Local procedures must be followed to obtain the court order. If preparation of an affidavit is necessary, obtain the approval of District Counsel regarding the affidavit's legal sufficiency and form. Pen registers approved by the District Director and District Counsel must be submitted on Form 9170, Request for Pen Register and/or Trap and Trace Devices, to the Assistant Commissioner, CI. If appropriate, the written request may be transmitted by facsimile (fax).

[9.4] 6.7.3.5.3  (03-02-1999)
Oral Requests

  1. If time does not permit a written request, the information may be orally transmitted to the Assistant Commissioner, CI. An oral request for approval must be confirmed in writing and submitted within 2 working days after the oral request is made. After the request has been approved by the appropriate officials and returned by the Assistant Commissioner, CI's, office, the Chief will contact the U.S. Attorney or Strike Force Attorney to apply for the necessary court order.

[9.4] 6.7.3.5.4  (03-02-1999)
Information to Include in Request for Approval

  1. The request for approval should contain the following information:
    1. Investigation name, number, and activity code from CIMIS Users Handbook.
    2. Telephone numbers to be monitored.
    3. Names and addresses of telephone subscribers.
    4. Reasons for the use of pen registers.
    5. Names and titles of all persons who will install the equipment.
    6. The duration for which the authorization is sought and the date the surveillance will begin. The authorization should conform to the time limits established by the court order, not to exceed 60 days. When the beginning date is set, consider the time needed to obtain the equipment and the time for the request to be considered. If the beginning date is not known, this should be stated in the request and the District should provide this information by telephone to the National Operations Division, Special Investigative Techniques (OP:CI:O:S) on the first workday after installation of the pen register.
    7. The steps to be taken to provide limited access to the pen registers during their operation and other security precautions.
    8. A statement that District Counsel concurs that the proposed affidavit is in support of the application and that it is legally sufficient.
    9. A statement that the U.S. Attorney or Strike Force Attorney endorses the decision to apply for a court order.
    10. Information regarding the substance of the investigation(s).
    11. A statement explaining the significance of the use of the telephone in furthering the alleged violation.
  2. After approval by the appropriate officials, the Chief, CI, will arrange for the timely shipment of a pen register(s) and other requested accessory equipment. Upon receipt of the final approval, the case agent should promptly contact the U.S. Attorney for the purpose of issuance of a court order by a federal magistrate or judge.

[9.4] 6.7.3.6  (03-02-1999)
Installation of a Dialed Number Recorder (DNR)

  1. Title I prohibits the intentional interception of any wire communication (including the existence of any oral communication) by a law enforcement agent without court ordered authorization. In compliance with the prohibition, the following procedures must be completed in order to install a dialed number recorder (DNR).
  2. Contact the telephone company to identify the line that the DNR is to be attached.
  3. If the telephone company does not have the personnel available to confirm the correctness of the line at the appearance point, the tech agent will do the following:
    1. A voltmeter must be attached to the identified line to determine if the telephone is in use.
    2. If the telephone is not in use, attach the butt set to the line and confirm that the line is the correct line. If someone attempts to use the line while the butt set is attached to the line, the butt set will be immediately disconnected and not be reconnected until it has been determined (using the voltmeter) that the line is not in use.
  4. After the pen register has been set up and initially activated, the cover and rear terminal strip will be padlocked by the Chief or designee. The Chief will ensure that installers and operators are competent to install and operate the equipment. Adequate precautions will be taken to limit access to the pen register only to its operator and other necessary personnel. The Chief or designee will sign an affidavit at the end of the usage affirming that no other individuals had access to the keys or combinations and that the machine was not tampered with. The operator will maintain a record containing the date, time, and name of persons having access to the equipment. This record will be maintained as a part of the investigative file. Upon completion of use, pen registers must be immediately returned to the issuing office.
  5. If the authorization is not utilized, a memorandum will be submitted to the Assistant Commissioner, CI, setting forth the reasons why. The memorandum will include the name of the investigations on which authorization is sought.
  6. If an extension is necessary, submit a request summarizing results to date to the Assistant Commissioner, CI, for consideration no later than (5) five days before the end of the prior authorization. The request will set forth the number of days the extension is sought. The extension may not exceed 60 days.
  7. If additional phone numbers need to be surveilled or equipment installed on phones not in the original request, submit a request setting forth the reasons. Include in the request the new telephone numbers to be monitored and the name(s) and address(es) of the subscribers. The request for an extension of time can be combined with this request if they occur simultaneously.

[9.4] 6.7.3.7  (03-02-1999)
Trap and Trace ("Grabber" )

  1. A trap and trace device is also called a "grabber" . It records the telephone numbers from incoming calls to a particular telephone. The device used by the telephone company is a TTS-176 device or an electronic switching system (ESS) or cross bar switching facilities. Once again, no conversation is obtained. Trap and trace procedures are necessary when attempting to monitor call forwarding.
  2. Call forwarding is part of the trap and trace procedure. It requires that a telephone company identify to which facility or number telephone calls are being forwarded. Historically, telephone companies have been reluctant to assist in trap and trace procedures or call forwarding monitoring unless the situation concerns threats to the President or kidnapping. The statute now protects companies from liability in connection with such devices that follow the statute. (See Title 18 USC, Section 3124(d).)
  3. The telephone company may be able to provide a record of incoming calls to the telephone of a subject under investigation. This depends on the type of switching facility (exchange) involved. This information can be as useful as a pen register.
  4. Trap and trace service requires the same approval as pen registers. Requests and any deviations from requests must conform to the same procedures in pen register requests and will be considered in the same manner.
  5. Consider the availability and use of "caller ID" to obtain desired information prior to applying for a trap and trace authorization.
  6. A court order is required.
  7. Whenever possible, before obtaining an order to trace incoming calls to a particular line, review the proposed trace with the local telephone company's security officer. The security officer should be able to advise of foreseeable problems in the execution of the proposed order.
  8. Except in very rare instances, orders should be limited to Electronic Switching System (ESS) or No. 5 cross-bar facilities. The likelihood of successfully tracing telephone calls through a system using less sophisticated equipment is extremely low and requires an inordinate amount of time and equipment.
  9. Where possible, all orders should also be limited with respect to:
    1. Scope: An order should minimize the number of lines on which trap and trace service is requested at a given switching facility.
    2. Geography: It is preferable that the order limit traces to "all calls originating in X City" or "all calls originating within a Y-mile radius of Z town."
    3. Duration: Orders should limit the trace to 60 days, subject to an extension of an additional 60 days if the supervising attorney determines it to be necessary.
    4. Hours: If it is possible to anticipate when calls will come into a target phone, tracing should be limited to these hours.
  10. Seek the tracing information from the telephone company no more than once a day and, except in unusual circumstances, only during regular business hours.
  11. Each order should contain a clause forbidding the phone company to disclose that a trace is or has been in progress. A telephone company should be given the opportunity for a closed hearing before the issuing judge to seek limitations of any proposed order if the telephone company feels the order is too burdensome.
  12. Exhibits 9.4.6-3 and 9.4.6-4 are examples of narratives for an application and a model court order for obtaining trap and trace information.
  13. Use Form 9170, Request for Pen Register and/or Trap and Trace Devices, to request approval.

[9.4] 6.7.3.8  (03-02-1999)
Use of Electronic Tracking Devices

  1. Use of electronic tracking devices is permitted only in cases involving a felony violation or in wagering tax investigations if:
    1. The person in lawful possession of the vehicle or personal property consents to the installation.
    2. The vehicle is not located where a reasonable expectation of privacy exists.
    3. The tracking device will be installed on the vehicle in a manner that would not violate a reasonable expectation of privacy.
    4. Authorized by a court order.
  2. The Chief, CI, may authorize consensual use of electronic tracking devices. The Chief, with the concurrence of District Counsel and the local U.S. Attorney's office, may authorize use of electronic tracking devices in situations described in (b) above. Electronic tracking devices will not be used in investigations involving misdemeanor violations (other than wagering investigations).

[9.4] 6.7.3.8.1  (03-02-1999)
Approval

  1. The Chief, CI, may allow application for court orders authorizing the installation of an electronic tracking device in the investigation of felony violations and in the enforcement of the wagering tax laws. The Chief will, with the approval of the District Director, obtain the approval of District Counsel on the legal sufficiency and form of affidavits in support of an application for a court order authorizing the installation and use of an electronic tracking device(s) prior to contacting the U.S. Attorney or Strike Force Attorney. Telephonic approval may be obtained 24 hours a day from District Counsel in situations requiring immediate action. Upon approval by the District Director and District Counsel, submit by memorandum a request for installation of an electronic tracking device to the Assistant Commissioner, CI. If appropriate, consideration should be given to transmittal of a written request via telephone communication facilities (fax). When time and communication facilities are insufficient to accomplish a written request, the needed information may be orally transmitted to the Assistant Commissioner, CI. An oral request for approval must be confirmed in writing and submitted within 2 working days after the oral request is made. After the request has been approved by the appropriate officials and returned by the Assistant Commissioner's, CI, office, the Chief will contact the U.S. Attorney or Strike Force Attorney to determine whether they concur in the legal sufficiency and form of the affidavits and whether they will apply for the necessary court order.

[9.4] 6.7.3.8.2  (03-02-1999)
Information to Include in Request for Approval

  1. The request for approval should contain the following information:
    1. Investigation name, number and activity code from the CIMIS Users Handbook.
    2. Identification of vehicle or personal property on which the equipment will be installed.
    3. Reasons for the use of the electronic tracking device.
    4. Names and titles of all persons who will install equipment.
    5. The duration and the date the surveillance will begin. The authorization should conform to the time limits established by the court order, not to exceed 60 days. When the beginning date is set, consider the time needed to obtain the equipment and the time for the request to be considered. If the beginning date is not known, this should be stated in the request and the district should provide this information by telephone to the National Operations Division, Special Investigative Techniques (OP:CI:O:S) on the first workday after installation of the electronic tracking device.
    6. A statement that District Counsel concurs that the proposed affidavit in support of the application is legally sufficient.
    7. A copy of the proposed affidavit.
    8. The name and title of the U.S. or Strike Force Attorney who will apply for the court order.
    9. Information regarding the substance of the case(s).
  2. Contact the U.S. Attorney or Strike Force Attorney for the purpose of issuance of a court order by a federal magistrate or judge upon receipt of the final approval.
  3. If the authorization is not utilized, a memorandum will be submitted to the Assistant Commissioner, CI, setting forth the reasons why. Include the investigation(s) seeking the authorization.
  4. If an extension is necessary, submit a request summarizing results to date to the Assistant Commissioner, CI, for consideration no later than (5) days before the end of the prior authorization. The request will set forth the number of days that the extension is sought.
  5. If additional tracking devices need to be installed or tracking device(s) installed in a different location, submit a request setting forth the reasons. This request should include the identification of the vehicle or personal property on which the tracking device(s) will be installed. The request for an extension of time can be combined with this authorization request if they occur simultaneously.

[9.4] 6.8  (03-02-1999)
Restrictions on Electronic Surveillance Techniques

  1. Permanent installation of concealed microphones, recording equipment and similar devices in IRS offices is prohibited. Temporary installations are permitted only when authorized in accordance with the requirements for consensual and non-consensual monitoring.
  2. The use of transmitters or other devices to assist in trailing vehicles or personal property is permitted only if the person in lawful possession of the vehicle or property consents to the installation, or when authorized by a court order. (See Use of Electronic Tracking Devices.)
  3. Transmitters or other radio signal sending equipment to facilitate communication between investigators or persons acting under their supervision to coordinate surveillance or raids is permitted without prior supervisory approval.
  4. Investigative devices may be installed and utilized to intercept, overhear, or record conversations in public telephone booths or any other type of public telephone. The equipment must be installed immediately prior to the consensual monitoring and removed immediately thereafter.
  5. Miniature recorders and radio transmitters will not be used surreptitiously in conducting routine surveys and interviews with third parties, unless consensual monitoring is authorized.
  6. Field offices may procure sensitive type equipment only to the extent provided for in the Fiscal and Personal Handbook, 9.11, Chapter 3, Investigative Property. Special agents may not use sensitive type equipment procured personally by them for investigative purposes.
  7. Permission to employ eavesdropping devices can only be granted to special agents. The equipment can only be used by them or by personnel acting under their direction. The prohibitions and limitations outlined apply equally to non-Service personnel who act at the direction of special agents.
  8. Radio scanners may be used by special agents to avoid unintentional interference from local police during surveillances.
  9. Radio scanners should not be used to listen to transmissions on other radio frequencies (e.g. mobile telephones and business radio) Normally, citizens band transmissions can be monitored unless there is reason to believe that a base station is using a wire link that is supplied by a common communications carrier.

[9.4] 6.9  (03-02-1999)
Video Surveillance

  1. The government's use of video equipment to covertly intercept and televise a meeting without the consent of a party, does not violate Title I when there is no interception of oral, wire or electronic communication. A search warrant issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure is required if there is an expectation of privacy.

[9.4] 6.9.1  (03-02-1999)
Video Surveillance of Public View Areas

  1. Use of a video camera to observe activity which is viewable by the public, either because members of the public can lawfully access the area where this activity occurs or can see the activity from a lawful vantage point, does not generally constitute an intrusion into a constitutionally protected private interest. A warrant is generally not required to visually record activities that occur in publicly accessible areas such as public parks, sidewalks, streets, open fields, or other areas outside the curtilage of the home which are commonly accessible to the public.
  2. The Supreme Court stated that the Fourth Amendment is not extended to require law enforcement officers to shield their eyes when passing a home on a public thoroughfare. Officers may use video surveillance to assist them in observing certain areas even when the areas are within the curtilage of one's home if others can observe these same areas from a place they are lawfully entitled to be, such as from the street, sidewalk, or an open field. This would include unobstructed video surveillance of driveways, front doorways, and yards of businesses or houses.
  3. Applying the above rationale, it has been held that video surveillance of an area of the workplace which was accessible and viewable by others during work hours did not require a warrant and did not violate the Fourth Amendment. This rationale must not be universally applied as the facts of each case must be considered. In the context of an employee's work station or area, courts have found privacy interests in employees' desks and files.

[9.4] 6.9.2  (03-02-1999)
Public Access and Other Areas Entitled to Fourth Amendment Protection

  1. Video surveillance into public areas, such as a rest room, where one would reasonably expect their actions to be private must comply with Fourth Amendment standards and may require a warrant.

[9.4] 6.9.3  (03-02-1999)
Video Surveillance When Consenting Party is Present

  1. Police officers may also observe and video undercover officer(s) or cooperating witness(es) with subjects if the meeting on private premises is controlled by the officer or witness. In this situation, the subjects expose their actions to a participant (the undercover officer or cooperating witness) who consents to the video monitoring.

[9.4] 6.10  (03-02-1999)
Aerial Surveillance

  1. Aerial surveillance is not subject to Title I restrictions and is generally not a search within the meaning of the Fourth Amendment.
  2. The Supreme Court rulings are based upon whether or not a person has a constitutionally protected reasonable expectation of privacy. This involves:
    1. Whether the person expected privacy; and
    2. Whether society recognizes that expectation as being reasonable.
  3. The Court also said that an individual taking measures to restrict views of his activities does not preclude and officer's observation from a public vantage point where he has a right to be and which renders the activities clearly visible. In these cases, the police observations took place within public navigable airspace, in a physically non-intrusive manner, and any member of the flying public in the airspace who cared to glance down could have made the same observations. The Fourth Amendment does not require a search warrant in order to observe what is visible to the naked eye. If some enhancement device is used during the overflight, the general rule may not apply.

[9.4] 6.10.1  (03-02-1999)
Use of Aircraft

  1. Aircraft may be used in investigative situations such as:
    1. Surveillance.
    2. Electronic tracking.
    3. Communications relay.
    4. Aerial photography.
    5. Undercover support or
    6. Expeditious transport or agents or equipment in emergency situations.
  2. Federal, state, and local government aircraft should be used where available. When not available, aircraft will be rented or leased from a local aviation service. When a decision is made to rent or lease an aircraft, the following procedures should be used:
    1. Prepare and forward a requisition to the appropriate payment office; or
    2. Establish an imprest fund in support of the operation.
  3. To pilot an aircraft, special agents must meet the following minimum standards:
    1. 500 hours flight time.
    2. 100 hours cross-country flight time
    3. 100 hours of actual or simulated instrument flight time.
    4. FAA Commercial Pilot Certificate (appropriate category).
    5. Current FAA instrument ratings; and
    6. Current FAA Second-Class Medical Certificate.
  4. The minimum crew for aircraft surveillance will be a pilot and an observer. Except for the pilot, only special agents or other federal, state, or local law enforcement agents or officers will conduct surveillance.
  5. All aircraft will be operated under Federal Aviation Administration certification and Federal Aviation Regulations. Aircraft will be flown in accordance with the applicable flight manuals and performance limitations. Any deviation shall be approved in advance by the local Federal Aviation Administration. Aircraft accidents or incidents shall be reported to the National Transportation Safety Board in accordance with National Transportation Safety Board Regulations.

[9.4] 6.11  (03-02-1999)
Report of Information Received From State or Local Agencies

  1. The Chief, CI, will submit a report, through channels, including the District Director to the Assistant Commissioner, CI , concerning electronic surveillance information received from state or local agencies. The report will be submitted within 30 days after the information is received.
  2. The report of electronic surveillance information received from a state or local agency shall contain:
    1. The investigation name and number (if applicable).
    2. The names of the persons whose conversations were monitored, if applicable.
    3. A summary of the information obtained, to include the names of all individuals mentioned in the monitored conversations.
    4. The locations (address) where any monitored conversations took place and, if applicable, the telephone number of the telephone on which the monitoring equipment was installed.
    5. The name of the agency that conducted the electronic surveillance.
    6. The periods of time that the equipment was used (dates and times) and
    7. The name of the IRS employee who has custody of the records relating to the monitoring, or the name and location of the IRS activity to which the information was transmitted.
Exhibit [9.4] 6-1  (03/02/99)
Surveillance Checklist
>
(1) Pre-Operation Intelligence Gathering
a. Determine surveillance objectives.
b. Research agency files for any information on the target.
c. Research personal and criminal background.
d. Obtain photographs and physical descriptions from reliable sources.
e. Determine description and license numbers of all vehicles belonging to target, target's close family members, and associates.
f. Find out if target or associate is known to carry weapons or prone to violence.
g. Identify prior method of operation.
(2) Site Survey
a. Prepare diagram of site for all members of team with all points of entry and exit noted.
b. Determine how many agents are needed to cover your objective.
c. Give each team member a detailed street map of the site and surrounding areas. Note nearest hospital and trauma centers.
d. Determine if site is located in high risk area. If so, decide additional defensive equipment requirements.
e. Determine details members need to know about the area.
(3) Staffing:
a. Select trained and experienced agents (consider those who work and practice together).
b. Consider male/female teams and two-member teams in each vehicle.
c. If possible, choose agents who will blend into the environment in terms of dress, color, race, and language.
(4) Equipment:
a. Test all radio equipment (vehicle and portable). Insure accessories, such as ear pieces, are available and working.
b. Make sure there is sufficient change for telephone calls, parking, tolls, and admittance fees.
c. Make available a first aid kit; jumper cables; spare batteries for hand held radios, flashlights, and other equipment; flashlight for each automobile, and flares.
d. Consider a tape recorder for surveillance notes.
e. Provide hand-held radios for each passenger in two-person moving surveillance, as well as a method of concealment for hand-held radios used during foot surveillance.
f. Consider a change of clothing or disguise.
g. Other items to consider are a portable repeater, mobile cellular telephone, hand held bullhorn or loudspeaker device, binoculars, telescopic lenses, starlight scopes, redlights, sirens, and P.A. systems.
h. Review site-survey for other equipment needs particular to the site.
(5) Communications:
a. Field test all radios and base stations. Consider areas which may be dead zones. Make sure repeater(s) are operating properly.
b. Determine radio codes for target, associates, locations, and alternate plans.
(6) Pre-Operational Briefing:
a. Ensure all surveillance team members understand that no assignment is worth the loss of life or serious injury. Be prepared to sacrifice operational success for the sake of safety.
b. Discuss objectives of surveillance and techniques, methods, and equipment to be used. Discuss how the surveillance fits into the big picture.
c. Discuss results of intelligence gathering. Distribute all data, sketches, floor plans, photographs, telephone numbers, addresses, pager numbers, etc.
d. Discuss the surveillance log and what it should contain.
e. Discuss proper radio communications to include codes to identify contingency plans, targets, and locations. Designate radio channels to be used.
f. Distribute and test all equipment.
g. Discuss plans to detect counterintelligence against the surveillance team.
h. Discuss potentially dangerous situations.
i. If appropriate, team members should visit target areas prior to execution date for familiarization of entranceways, exits, people, dress, attitudes, and geographic area to include detection traps such as one-way and dead-end streets.
j. Inform each driver to make sure gas tank is full prior to beginning each day's activity.
(7) Post-Operational Review: Identify and discuss problems with tactics, equipment, training, etc., and make sure solutions are addressed.
Exhibit [9.4] 6-2  (03/02/99)
Risk Assessment Guide Checklist
>
(1) List comments and level of risk for each of the following considerations:
(2) TIME OF DAY
a. Day/Hour
b. Night/Hour
(3) EXPECTATION OF FORCED ENTRY
a. Open
b. Locked
c. Fortified
(4) LOCATION CONCERNS
a. Type of structure, apartment, private residence, or business
b. Number of entrance areas to structure
c. Neighborhood concerns
d. Illegal Activity
e. Legal Activity
f. Lookouts
g. Concealed areas
h. Alarms or booby traps
i. Drug lab on the premises or chemicals which could cause explosion
j. Money or drugs on site
(5) ANIMALS
a. Kind (attack dogs)
b. Number
c. Countermeasures
(6) PROXIMITY OF LOCAL
a. Hospital
b. Police Department
c. Fire Department
(7) PERSONS EXPECTED TO BE PRESENT
a. Number of persons
b. Criminal history
c. Militant
d. Foreign language requirement
e. Martial artist
f. Medical concerns
g. Children present
h. Uninvolved individuals
i. Undercover agent on scene
j. Risk of flight
(8) WEAPONS EXPECTED TO BE PRESENT
(9) COUNTER SURVEILLANCE/OPERATIONAL SECURITY
a. Electronic devices
b. Leaks to media and others
(10) TEAM PERSONNEL
a. Multi-agency coordination
b. Training and experience level
(11) LOGISTICS
a. Visibility of agent staging area
b. Command post site (primary)
c. Alternate post site (if necessary)
Exhibit [9.4] 6-3  (03/02/99)
Application
>
(1) The following is an example of a narrative for use in the application for an order authorizing the installation and use of a device to trap and trace originating telephone numbers.
(2) The United States, by its attorney John Doe, moves this court pursuant to Fed. R. Crim. P. 57(b), to grant an order (1) authorizing the installation and use of an electronic or mechanical device to trace and identify the telephone numbers of parties placing calls to telephone number 555-123-4567 located at 1234 Any St., Anytown, USA, and subscribed to by Jane Roe and (2) directing the Great Telephone Company of Northern Virginia, a communication common carrier as defined in Section 2510(10) of Title 18, United States Code, to furnish forthwith Special Agent Richard Moe of Internal Revenue Service all of the information facilities and technical assistance necessary to unobtrusively accomplish such tracing and identification, including installation and operation of the device.
(3) In support of this application, the United States represents as follows: 1. Richard Moe, Special Agent of the Internal Revenue Service, has been engaged in an investigation of Jane Roe for violations of federal laws, including 26 USC 7201; 2. It is believed that Jane Roe uses telephone number 555-123-4567 located at 1234 Any St., Anytown, USA, and subscribed to by Jane Roe to discuss her criminal activity, to conduct her criminal activity, and/or to further criminal activity; 3. It is believed that information concerning the above-mentioned offenses, additional co-conspirators, and the victims of these offenses will be obtained upon discovery of the numbers, locations, and subscribers of the telephones from which 555-123-4567 is called.
(4) Wherefore it is respectfully requested that this court grant an order: (1) authorizing the installation and use of an electronic or mechanical device to trace and identify the telephone numbers of, and the name and address of the subcriber of record to, each identified incoming call to telephone number 555-123-4567; (2) directing the Great Telephone Company of Northern Virginia, a communication common carrier as defined in Section 2510(10) of Title 18, United States Code, to forthwith furnish Richard Moe, Special Agent of the Internal Revenue Service, with all information, facilities, and technical assistance necessary to accomplish the tracing and recording, including installation and operation of the device, unobtrusively and with a minimum of disruption to normal telephone service; (3) directing the Great Telephone Company of Northern Virginia to provide Richard Moe, Special Agent of the Internal Revenue Service at reasonable intervals during regular business hours with the results of the tracing and identification, including the telephone number of, and the name and address of the subscriber of record to, each identified incoming call to telephone number 555-123-4567 and, where possible, the time and duration of each such call; and (4) further directing that the Great Telephone Company of Northern Virginia, its agents and employees shall not disclose to the listed subscribers of the above-mentioned telephone numbers, nor to any other person, the existence of this order or of this investigation, unless otherwise ordered by the court. Furthermore, it is respectfully requested that the court's order be limited in the following respects: a. The tracing operation shall be limited to Electronic Switching System (ESS) or No. 5 cross-bar facilities; b. The tracing operation shall be restricted to tracing and recording only those calls originating from a 10-mile radius of Anytown, USA; c. The tracing operation shall be restricted to the hours of 9 a.m. to 9 p.m. daily; d. The court's order shall be in effect for 60 days from the time it is granted.
Respectfully Submitted,
Assistant United States Attorney

Internal Revenue Manual  

Hndbk. 9.4 Chap. 6 Surveillance and Non-Consensual Monitoring

  (03-02-1999)


05/02/2001 14:28:52 EST