Can You Travel While Under Federal Investigation??

Generally speaking, being under federal investigation does not bar you from travel, domestic, interstate, or international, and you generally do not need to surrender your passport in order to avoid criminal liability. However, when federal prosecutors and agents can prove you have a particular intent (even if not yet specifically charged), it can be much more dangerous to travel.

Why Travel When Under Federal Investigation Can Be Dangerous

Travel becomes prohibited when a court order or release condition restricts your movement. However, travel can be dangerous when under federal investigation for a variety of reasons, including:

• Active warrants: Travel processing at an airport or border check can result in arrest if you have an active arrest warrant.
• Flight risk: While flying when uncharged does not inherently imply guilt, if prosecutors try to convince a court that you are a flight risk, a past international trip can be used to support their argument.
• Detention and bond: If you end up being arrested or charged, flight history can be used to argue that you are a danger to the community or a risk of flight.
• Border crossing: Crossing borders can result in additional scrutiny or detainment if you are under investigation.
• Evidence: Depending on the nature of the crimes you are investigated for, traveling can inadvertently create evidence that supports the government’s case.

Do You Need to Surrender Your Passport?

If you are an uncharged target of a federal investigation, no, you do not need to surrender your passport to the government. If you are under indictment and a court has ordered you to do so, you may need to surrender your passport to prevent further criminal charges from arising.

Do I Have to Notify Anyone Before Traveling?

Generally speaking, if you are an uncharged target of a federal investigation, you may leave your state without having to notify anyone. This is true because there is no federal statute that automatically confines uncharged targets to their home district; and if there is no court order confining you, there is no legal duty for you to notify your federal agent or prosecutor if you plan to travel abroad.

Does Receiving a Target Letter, a Grand Jury Subpoena, or a Federal Target Letter Require Notification of Travel?

Even if you have received a target letter, a grand jury subpoena, or a federal target letter, you will generally not be under any legal duty to notify federal prosecutors or federal agents before traveling abroad. That said, before traveling, you should reach out to experienced federal criminal defense counsel to assess your risk and to ensure you are making informed travel decisions. While travel itself is permissible, the decision to travel when under investigation requires careful analysis based on the circumstances at hand.

Remember, although travel may not be prohibited when under federal investigation, travel does not excuse compliance with a grand jury subpoena’s appearance date or production deadline. As a result, traveling before compliance with a grand jury subpoena can be interpreted as an effort to evade detection or prosecution, which can lead to charges of contempt in some circumstances. If you have received a grand jury subpoena, you will want to discuss your travel plans with your legal counsel before departing.

If you are a grand jury subpoena target, you must also be mindful of any requirements imposed by the subpoena to provide testimony, as traveling could potentially interfere with your ability to testify when required by the court.

Must I Surrender My Passport Before Being Charged with a Federal Crime?

While you may not be required to surrender your passport, federal agents may ask you to do so. This may serve several purposes, including both ensuring that you are in the country when an indictment is served and confirming that you are not attempting to flee. However, you will want to discuss this request with your attorney before complying. While it may be permissible to surrender your passport, there may be strategic reasons why doing so is not a good idea.

Can an Airport Reveal a Sealed Indictment or Warrant?

Does an Open Investigation Place You on a “No-Fly” List or Create a Specific Alert if You Fly Out of Airport or Otherwise Cross the Border?

Generally, no. Merely being under investigation will not place you on a “no-fly” list, nor will it trigger a travel alert unless you have a warrant, have committed a crime that requires you to be confined to your home district, or unless there has been a “lookout” requested by a federal agency. With that said, CBP, ICE, and other federal agencies can enter “lookouts” in TECS, the CBP-owned law enforcement system used for border screening, which in turn can query the FBI’s National Crime Information Center (NCIC) for outstanding warrants. Such lookouts can alert CBP to your movement and can subject you to additional questioning or detainment when crossing the border.

Can Your Airline Reveal an Indictment or Warrant When You Fly Out of Airport?

Generally, no. However, before traveling internationally, airlines will transmit your advance passenger information to CBP. This advance information triggers a query of CBP’s Automated Targeting System (ATS). ATS is a CBP decision-support system that screens that information against CBP holdings and law enforcement data, including TECS, a system whose records and user community span more than twenty federal agencies. If the ATS query shows that you are under investigation or in the database of one of the participating agencies, it could alert CBP agents to look for you when you cross the border.

Can a Federal Judge Seal an Indictment Until You Are Arrested?

Yes. Pursuant to Federal Rule of Criminal Procedure 6(e)(4), a magistrate judge may direct that an indictment be kept secret until the defendant is in custody or has been released pending trial. Sealed indictments are often used when the prosecutor wants to make an arrest before the target becomes aware of the indictment, and for this reason, traveling when under investigation can potentially present risks. For example, traveling out of state or abroad can lead to suspicion and will prompt inquiries that could result in an attempt to arrest you.

Can TSA Agents Detect Your Indictment or Warrant When You Fly Out of Airport?

TSA has “Secure Flight,” which allows TSA agents to compare the information provided by the passenger to a consolidated “watch list.” While the watchlist can include people who are fleeing the country, it will not necessarily contain all people who have been indicted or who have warrants for their arrest. So, flying, in and of itself, can still lead to your arrest if you are on a watchlist and TSA alerts law enforcement.

Can Law Enforcement Officers Detect Your Indictment or Warrant if You Fly Out of Airport?

Yes. NCIC is a comprehensive database that allows law enforcement officers to query for information on suspects, including federal and state suspects. In addition, lookouts and arrests are also logged in NCIC. Therefore, if law enforcement officers know your identity and are checking the database for federal warrants, this can lead to an arrest if your indictment has been unsealed and entered into NCIC.

How Do Release Conditions Limit Travel After Being Charged with a Federal Offense?

The Bail Reform Act is the federal statute that governs release and detention decisions. Under the Bail Reform Act, there are several factors that federal judges consider when making these decisions. 18 U.S.C. § 3142, which section of the Bail Reform Act lists the factors relevant to the decision, also authorizes judges to impose a variety of release conditions. Once charges have been filed and an arraignment has taken place, release conditions will become the primary source of restrictions on a defendant’s travel. With these exceptions, defendants may travel as long as it does not pose risks that lead to detention or restrictions under the Bail Reform Act.

Can Federal Release Orders Limit Travel to a Specific Judicial District?

Yes, they can. Federal release orders can limit a defendant’s travel to one or more specific judicial districts. If you have violated any conditions, your attorney will want to seek appropriate relief to protect your freedom while facing charges.

If a federal release order does not explicitly restrict your movement to certain judicial districts or another geographical area, you will be able to travel so long as doing so does not violate the other conditions of your release. However, even in this scenario, before traveling, you will want to speak with your attorney. Your attorney can review all the relevant details and help you make informed travel decisions.

Can Federal Release Conditions Require You to Surrender Your Passport?

Yes. One of the most common forms of restriction on travel imposed under the Bail Reform Act is requiring a defendant to surrender their passport and other travel documents. This restriction is often imposed even in cases that do not involve significant flight risk. If you were forced to surrender your passport or your travel was restricted, your defense attorney should be able to help you seek the return of your passport or the lifting of your travel restrictions.

Can Federal Release Conditions Require You to Report to a U.S. Probation Officer or Other Federal Official?

Yes. If you were arrested and released, your release conditions likely include a requirement that you report to a U.S. probation officer or another federal official. This is one of the other common forms of release conditions under the Bail Reform Act and can greatly limit your travel. While doing so, make sure to keep the reporting person informed and consult with your defense attorney about any necessary travel or other personal needs.

Can You Travel Outside the Approved Boundaries of Your Release Conditions?

Generally, you will not be able to travel outside the boundaries approved under your release conditions. However, the court will permit you to travel outside the boundaries with its prior approval. This is usually possible for medical treatment or other reasons in the interest of justice. If your travel plans fall under these exceptions, your attorney can seek a travel order.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What Travel Facts Can Help Support Prosecutors’ Flight-Risk Arguments?

There are several types of travel facts that can help support prosecutors’ flight-risk arguments. Once charged, an individual’s flight risk can still be relevant to detention and bail decisions. Some examples include:

• Travel with a one-way ticket: If you are traveling and have bought a one-way ticket, the prosecutor will argue that this is evidence of a likely attempt to flee.
• Travel to non-extradition countries: Travel to non-extradition countries can also be used to argue that you are a flight risk.
• Use of cash to buy plane tickets: If you bought your tickets with cash, the prosecutor can use this to argue that you do not want your identity known.

How Are Bail Decisions Made Under the Bail Reform Act?

Pursuant to 18 U.S.C. § 3142(g), federal judges determine an individual’s flight risk by considering the following factors:

• “Family ties, employment, financial resources, residence, and the defendant’s community ties;”
• “The defendant’s criminal history, including any prior failures to appear in court or any previous appearances of the defendant in criminal, civil, or other proceedings;”
• The nature and circumstances of the offense charged and the weight of the evidence against the person; and
• Any other pertinent factors.

These factors indicate a broad list of considerations that both the defense and the prosecution can address. Therefore, if you are being detained, your attorney may cite your fixed residence, family ties, and continuing employment as evidence of your stability and a low risk of flight. Conversely, the prosecutor may rely on your ownership of foreign assets or the fact that you are a citizen of another country to argue against release.

When Can Prosecutors Use a Presumption in Order to Keep You Detained?

In addition to these considerations, there are certain circumstances under which there is a presumption of flight risk. Under 18 U.S.C. § 3142(e)(3), there is a rebuttable presumption that no condition or combination of conditions will reasonably assure the defendant’s appearance and the safety of the community where there is probable cause to believe the defendant committed a drug offense carrying a maximum term of ten years or more. This presumption also applies to certain offenses involving firearms, terrorism, human trafficking, or minor victims. In these circumstances, the defendant bears the burden of producing evidence to rebut the presumption, while the government retains the burden of persuasion.

What happens at the border with phones and passports?

What Happens at the Border When Traveling?

Are U.S. Citizens Subject to Questioning When Reentering the United States?

Yes. All U.S. citizens and non-U.S. citizens are subject to questioning when they are reentering the United States. While this questioning is most common for non-U.S. citizens seeking entry, it can affect U.S. citizens, dual citizens, and other individuals who are attempting to cross the border. CBP has the authority to deny admissibility based on violations of a wide range of federal laws, and any inquiries can lead to potential criminal charges for admissibility violations or other crimes as well.

Can CBP Send Travelers to Secondary Inspection?

Yes. CBP is authorized to send any traveler to secondary inspection. In most cases, this only involves further questioning about the trip and the traveler’s intent, but it can also lead to enforcement of other federal laws.

Can CBP Agents Search Your Phone and Other Electronic Devices When Crossing the Border?

Yes. CBP agents are authorized to conduct border searches, and under the border-search doctrine, these searches can include electronic devices. CBP policy generally requires reasonable suspicion that the electronic device contains information relevant to a criminal investigation for an advanced search of the device’s contents. However, there is a clear exception for “national security concerns,” and in this case, a search does not require reasonable suspicion.

Can CBP Agents Search My Phone or Other Electronic Device When I Only Cross the Border?

Yes. The same exception applies to travelers that are arriving in the U.S. However, CBP Agents must still follow the same procedures, so if you are traveling when you are aware that you are under federal investigation, it is important to discuss your situation with your attorney. If your attorney decides that you should travel, you will need to review your attorney’s advice in detail so that you will be prepared when you reach the border.

Can CBP Agents Detain My Phone or Other Electronic Device at the Border?

Yes. If CBP officers find that you are carrying a phone or other electronic device that they cannot complete a border search of, they can detain the device. Then, they may use the device as evidence in a criminal case if they can obtain a warrant to search the device.

Does the Fifth Amendment Apply to Searches of Electronic Devices at the Border?

Generally, no. The Fifth Amendment does not apply to searches of electronic devices at the border. While some courts have found that it is unconstitutional to compel a person to decrypt their electronic device, this varies on a case-by-case basis. There are no nationwide rules and there are many exceptions to these rules. If you need to protect the information on your electronic device, you should speak to your attorney.

Can CBP Search Protected Attorney-Client Communications?

Yes, although this search is subject to limits. CBP may search attorney-client communications and other communications that are protected from government disclosure. If you are traveling while your attorney is represented, you must assert attorney-client privilege in order to trigger the relevant special handling procedures.

Can CBP Agents Request or Take Your Passport?

No. Although CBP agents can request your passport and your passport is essential for re-entering the United States, the Secretary of State is the only official who is authorized to issue or revoke passports. While CBP agents can send travelers to secondary inspection and ask questions about their identity, they may not take your passport or other travel documents without the permission of a judge.

How Do I Get Permission to Travel if My Release Conditions Prohibit Travel?

Where Do I File My Request for Permission to Travel?

The answer depends on your release order. In some cases, you will need to file your request with Pretrial Services, and in others, your request will need to be approved by the presiding judge. You can file with both Pretrial Services and the presiding judge if your release order allows, or you can file through the proper channels. If your request is approved, you will receive a travel order.

Am I Guaranteed Approval?

No. Approval for pretrial travel is discretionary, not automatic. Even in some family emergencies, obtaining court authorization may be required.

What Happens if I Travel Without Permission?

If you travel without permission, your release can be revoked. Pursuant to 18 U.S.C. § 3148, a federal judge can revoke your release if you violate any of your release conditions. This violation may result in stricter conditions or pretrial detention.

Can a Judge Change My Release Conditions at Any Time?

Yes. Pursuant to 18 U.S.C. § 3142(c)(3), a judicial officer may amend your release conditions at any time. In addition to this provision of the Bail Reform Act, if your travel request is denied, your attorney can seek modifications from the court.

When Do I Need to File My Travel Request, and What Do I Need to Provide to Seek Approval?

The answer depends on your release order and the applicable local procedures. Your attorney can review these and advise you accordingly.

Is My Judicial Travel Restriction Binding?

Yes, your judicial travel restriction remains binding unless the authorized decision-maker modifies it.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.