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FBI Law Enforcement Bulletin - April2010

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					         April 2010




Sector Policing
              April 2010
              Volume 79
              Number 4
             United States
        Department of Justice
    Federal Bureau of Investigation
     Washington, DC 20535-0001

           Robert S. Mueller III
                Director

 Contributors’ opinions and statements                                       Features
     should not be considered an
 endorsement by the FBI for any policy,
          program, or service.

  The attorney general has determined          Should Sector Policing Be in              Law enforcement agencies may find
    that the publication of this periodical
   is necessary in the transaction of the
   public business required by law. Use
                                               Your Organization’s Future?
                                                           By W. Michael Phibbs
                                                                                   1     that transitioning to sector policing
                                                                                         can increase the effectiveness and
  of funds for printing this periodical has                                              accountability of police functions.
   been approved by the director of the
     Office of Management and Budget.

   The FBI Law Enforcement Bulletin                                                      A Canadian approach can offer an
                                               Futures Orientation in Police
      (ISSN-0014-5688) is published
    monthly by the Federal Bureau of
     Investigation, 935 Pennsylvania
                                                 Decision-Making Practices         14    alternative to the SARA model that gave
                                                                                         the law enforcement world a foundation
    Avenue, N.W., Washington, D.C.            By Michael Buerger and John Jarvis         it could use at the line level of policing.
  20535-0001. Periodicals postage paid
   at Washington, D.C., and additional
        mailing offices. Postmaster:
    Send address changes to Editor,
                                                            Confessions and
                                                                                   23
      FBI Law Enforcement Bulletin,
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               FBI Academy,                                  the Constitution            the implications of obtaining confessions
           Quantico, VA 22135.                                                           in violation of constitutional safeguards.
                                                               By Carl A. Benoit
                  Editor
                John E. Ott
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                                                                            Departments
         Assistant Art Director
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                                               8   Perspective                         19 Notable Speech
         The Training Division’s
   Outreach and Communications Unit
                                                   Universal Policing                     The Most Important
     produces this publication with                                                        Profession
     assistance from the division’s           12 Bulletin Reports
        National Academy Unit.
     Issues are available online at              Children and Violence                 21 Unusual Weapon
           http://www.fbi.gov.                   Tort Cases                               Shock Lighter
              E-mail Address                  	  Public	Defender	Offices
           leb@fbiacademy.edu                                                          22 Bulletin Honors
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       © Photos.com/shutterstock.com

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ISSN 0014-5688                                                                                              USPS 383-310
Should Sector Policing Be in
Your Organization’s Future?
By W. MIChAEL PhIBBS, M.h.R.




T
         o increase the effective-   of resources to improve their        before entering law enforce-
         ness and accountabil-       effectiveness and efficiency.1       ment. Agencies also must deal
         ity of police functions,    The change from traditional          with generational differences
some departments have tran-          methods to sector policing           wherein younger officers de-
sitioned to the sector, or zone,     creates new demands on every         mand more responsibility and
style of operations, sometimes       officer at all levels by requiring   opportunities for development
also referred to as geographic,      enhanced creative thinking and       and fast-track advancement.
or geo, policing. Sector polic-      more effective leadership and        These individuals bring in-
ing is an innovative, proac-         management skills.                   novative ideas and need the
tive approach to restructuring           Today’s police forces have       opportunity to be heard. To help
how law enforcement agencies         encountered changes in internal      modern law enforcement orga-
conduct their overall crime-         demographics. Employees now          nizations, the author presents
fighting strategies, personnel       hold advanced degrees or have        some groundwork for determin-
deployment, and allocation           succeeded at other professions       ing if transitioning to sector




                                                                                               April 2010 / 1
policing can provide an effec-              policies are accomplished                This approach creates a
tive approach to handling such              through a hierarchal man-           flatter organizational structure
issues.                                     agement system wherein              with overall responsibility and
                                            command-level officers make         accountability pushed down to
UNDERSTANDING                               decisions and give directions to    the lowest functional unit led
THE DIFFERENCES                             subordinates subject to disci-      by a sector commander. When
    In traditional policing                 plinary action if they fail to      implemented correctly, this
strategies, agencies assign their           carry them out. Over time, this     proactive, rather than reactive,
officers to precincts, large geo-           style of command and control        philosophy encourages im-
graphical areas with a captain              can reward managerial abilities     mediate response to problems,
or commander in charge. This                at the expense of leadership.       provides more opportunity for
approach applies a central-                     In contrast, sector polic-      development and responsibility
ized command philosophy that                ing uses a divisional structure     of the lower ranks, and fosters a
employs a hierarchical structure            emphasizing decentralized com-      spirit of out-of-the-box creativi-
with overall responsibility for             mand mechanisms that break          ty. Increased employee satisfac-
the success or failure of the               down decision-making authority      tion often becomes a welcome
organization at this command                into smaller parts based on pre-    by-product.
level. The command and control              determined criteria and allows
structure resembles that devel-             the individuals who have hands-     PLANNING
oped in the military, adapting              on knowledge of the problems        THE PROCESS
the centralized authority with              to make decisions. The sec-             Changing to a new philoso-
leadership and decision-making              tors may be business districts,     phy of policing takes courage
functions concentrated at the               neighborhoods with similar          because it can prove traumatic.
top of the organization. Opera-             characteristics, or simply small    Whenever agencies undertake
tions and enforcement of                    geographical areas.                 a major alteration, they should
                                                                                expect a certain amount of
                                                                                resistance. While some em-
                                                                                ployees may feel that they will



                                    “
                                                                                lose perceived personal power,
                                                                                others may not want new re-
                                          ...sector policing                    sponsibilities. Some simply may
                                          uses a divisional                     fear the unknown. Successful
                                                                                change requires an alignment
                                       structure emphasizing                    of the culture of the organiza-
                                      decentralized command                     tion and its new operational
                                      mechanisms that break                     philosophy. Before beginning
                                       down decision-making                     a transition to sector policing,
                                        authority into smaller                  the agency should conduct a



                                                                            ”
                                               parts....                        comprehensive needs analysis
                                                                                at the organizational level to
    Sergeant Phibbs serves with the Richmond, Virginia, Police Department
                                                                                determine if change is even nec-
    and is a consultant with Integritas Leadership Solutions.                   essary and objectively identify
                                                                                the challenges it will face. Then,




2 / FBI Law Enforcement Bulletin
it should answer the following      changes will test the leadership     them progress reports. Keeping
questions:                          and management abilities at          people advised of changes helps
 • Why does the organization        lower levels. Two essential con-     to encourage buy in because if
     need to change?                siderations in the planning pro-     employees develop a perception
                                    cess involve an understanding        of being kept in the dark, they
 • Does it have a clear under-
                                    of the implementation strategy       can become disengaged and
     standing of sector policing?
                                    and process and a determina-         resentful. When transitioning to
 • What is the benefit of           tion of the needs of skill gaps in   sector policing, officers need to
     changing to the new style?     supervisor development.              know what is expected of them,




                                     “
 • What are the agency’s                                                 both in terms of new responsi-
     current capabilities?                                               bilities and accountabilities and
 • What organizational                                                   how the new approach directly
     structural changes                                                  impacts them.
     will be required?                Successful change
                                     requires an alignment               Sector Boundaries
 • How will the organization
     evaluate the system to
                                      of the culture of the                   Creation of sector boundar-
     determine effectiveness?         organization and its               ies is of paramount consider-
                                        new operational                  ation. Determining the number
 • What are the training                   philosophy.                   and type of service calls for the




                                                               ”
     needs of the employees?                                             areas will allow for an accurate
 • How will the agency get                                               staffing analysis for person-
     buy in from the employees?                                          nel deployment. Giving each
 • Does it have the technologi-                                          specific call a weight of prior-
     cal resources?                     If switching to sector polic-    ity can provide the informa-
                                    ing was a well-thought-out deci-     tion needed during the initial
 • How will it engage the           sion and, in fact, needed, then      determination of sector staffing.
     employees and citizens?        the justifications should be self-   A careful examination of the
 • What weight will it assign       evident. Open communication          calls for service can influence
     to each call for service?      can help alleviate resistance.       the schedule that officers work.
     The end product should         Employee forums can provide          The data will show when and
accurately reflect the present      an excellent vehicle to discuss      where officers are most needed,
capabilities and weaknesses to      the reasons for the change and       thereby enabling the organiza-
enable a comparison of the gaps     allow a cascading message            tion to adjust individual shift
that exist with the anticipated     through the organization to ex-      staffing accordingly. After the
future functions and needs of       plain the anticipated outcomes.      first year, it should evaluate the
the organization. Because the       Further, a forum affords em-         number of calls for service that
restructured agency will be fun-    ployees the opportunity to voice     each sector receives against the
damentally different, advanced      their issues and concerns back       overall call volume to ensure
planning is necessary to pre-       to their leaders. Once the gears     efficiency across the agency. In
pare the employees to make the      of change have begun to turn,        theory, every officer should han-
transition as smooth as possible.   the agency must inform em-           dle roughly the same weighted
What may be fairly radical          ployees of time tables and give      equivalent of calls for service.




                                                                                               April 2010 / 3
     If a significant imbalance in   areas understaffed based on call    Sector commanders who fixate
calls occurs, the organization       volume. Such a situation almost     on their own zones can become
has two options: 1) realign the      certainly will result in morale     blind to situations arising in
boundaries of the sectors or 2)      problems and less than adequate     neighboring ones that may be
shift officers from one area to      policing.                           about to impact theirs. Instead,
another. Both have positive and                                          they should take a proactive
negative consequences. In prac-                                          stance and look at the issues
tice, however, it proves easier                                          affecting neighboring locales so
to move officers to another zone                                         they can create strategies to get
than to redraw sector boundar-                                           ahead of the problems before
ies. Shifting officers can have                                          they reach them. Precinct com-
political implications when                                              manders who understand this
community groups and govern-                                             can devise individual crime-
ment officials learn that their                                          fighting strategies and initiatives
sector officers are being trans-                                         to develop a spirit of coopera-
ferred to another location. Obvi-                                        tion, rather than competition,
ously, this demonstrates the                                             among sectors. Uncoordinated
importance of creating boundar-                                          sector strategies, no matter how
ies with care and staffing them      © Photos.com                        outstanding, when folded into
properly from the beginning.                                             an overall precinct strategy may
     Shifting the number of          Operational Sustainability          conflict.
officers among the areas also            Continuity of operations             The ability to lead and
varies the span of control at        sounds simple. However, most        develop continuity of operations
the sector and precinct levels.      operations resemble assembling      at the precinct level is essential,
Optimal span of control for any      a jigsaw puzzle, and nothing        and if not established at the
direct supervisor is five to eight   goes as planned. In sector polic-   outset, a piecemeal approach
subordinates. If each sector has     ing, continuity of operations       can develop. The successful
six shifts and each shift has        is essential for overall effec-     precinct commander needs to
one first-line direct supervisor     tiveness and efficiency in the      have the skills of a mid-level
who oversees between five to         precinct, which can have many       mediator when looking at the
eight people, one location may       sectors assigned. The precinct is   overall picture, thus ensuring
have as few as 30 officers while     a location for the administrative   continuous communication
another may have 48 assigned,        office of the sector commander      between the sectors and the
yet both remain within accept-       and a place where officers re-      continuity of overall long-range
able span-of-control limits. This    port. Because sector command-       strategies and short-term tactics.
end result of some zones hav-        ers are judged on successes or      The most effective sector com-
ing more officers assigned than      failures only within their indi-    manders understand the inter-
others reinforces the need for       vidual sectors, they must recog-    locking connections between
decentralized decision-making        nize the potential “silo” effect    adjoining zones and, thus, will-
authority at the lower levels.       of becoming solely focused on       ingly share data. All sectors and
Assigning the same number            what is occurring inside their      precincts should exchange data
of people to each sector will        areas without staying aware of      and information to determine
create imbalances with some          what takes place outside them.      crime patterns that cross both




4 / FBI Law Enforcement Bulletin
boundaries and would necessi-        the ability to conduct critical     approach that does not consider
tate the development of initia-      self-assessment. Identified de-     the unique characteristics and
tives from multiple sectors. One     ficiencies should not be con-       variable nature of the areas
of the most important actions a      sidered a sign of weakness but      will prove counterproductive.
precinct commander performs          an anticipated condition of the     A well-thought-out vision will
is obtaining and coordinating        changeover and an opportunity       create a clear line of sight to
additional resources to help         for professional development        direct the frontline officers’ ac-
sector commanders when situa-        throughout the organization.        tions toward meeting the goals




                                      “
tions arise that the areas cannot                                        and help ensure the overall
handle themselves.                                                       long-term success of the sector.
     Clearly, the greatest im-                                           Constant and open communica-
pact in the transitioning will be                                        tion will create synergy between
on the command and control               Determining the                 the vision and the goal-setting
function of the organization.         number and type of                 efforts and develop a spirit of
Sector policing creates new           service calls for the              collaboration.
challenges and calls for compe-        areas will allow for
tence in leadership and man-          an accurate staffing               Situational Awareness
agement skills at lower levels.      analysis for personnel                   Because sectors are differ-
The change from a centralized             deployment.                    ent, their commanders must




                                                               ”
to a more decentralized struc-                                           analyze the current state of their
ture requires that the traditional                                       areas and create a profile that
precinct and sector commanders                                           can identify the challenges, op-
receive training in management                                           portunities, resources available,
and leadership techniques to             As to sector leadership,        officer capabilities, and re-
help them design the operation-      creating a vision does not          sponsibilities for specific tasks.
al theories, long-range strate-      guarantee success, but failure to   Based on the sector profile,
gies, short-term action plans,       have a vision will ensure that it   commanders can devise a map
and targeted development of          does not happen. Sector com-        for such metrics as long-, me-
personnel that will effect posi-     manders will have the opportu-      dium-, and short-term goals and
tive change. While good man-         nity to make bold changes that      augment them with initiatives
agement sets the processes and       immediately impact their areas.     and action plans that contain
procedures for efficiency, good      The implementation of these         well-thought-out and interlinked
leadership positively influences     must proceed in the context of      steps.
people and enhances overall          the overall vision of the sec-           Sector commanders can
effectiveness.                       tor; strategy and tactics are       benchmark initial conclusions
     Through the decentraliza-       the vehicles to realize success.    and use them as a baseline met-
tion process, responsibility         Creation of an overall vision       ric to judge effectiveness and
and accountability are being         and mission statement sets the      efficiency of overall strategies
pushed down to the sector level.     tone for what the commander         and timetables. These bench-
Many organizations never have        wants to accomplish and should      marks allow the commanders
entrusted such obligations to        be forward thinking while still     to create an overarching vision
officers at the lower levels. This   accounting for the individuality    listing essential tasks that they
requires individual maturity and     of the sector. A cookie-cutter      must complete and provide a




                                                                                               April 2010 / 5
guide for reaching goals. All        crime prevention, along with         IMPLEMENTING GOALS
plans should have flexibility        realistic short-term goals and       AND ACTION PLANS
built in to deal with unanticipat-   action steps to address immedi-          The assessment and imple-
ed problems. During this phase,      ate concerns. Successful sector      mentation process involves
SWOT (strengths, weaknesses,         commanders employ more               identifying the strengths, oppor-
opportunities, and threats)          strategic development and rely       tunities, and weaknesses of the
analysis should be included to       less on tactical implementa-         organization.3 While most com-
show the strengths and weak-         tion. Traditionally, officers        manders can point out strengths
nesses of the sector and allow       promoted to the second level of      and opportunities, identifying
the commanders to maximize           supervision would have great         weaknesses proves difficult.
their opportunities and remedy       responsibility to implement          Weaknesses could include the
the threats.2 Many organizations     effective tactics. Now, however,     officers who have a half-hearted
fail to understand what can con-                                          commitment to the goals and
stitute a threat. In sector polic-                                        the community’s unwillingness
ing, anything beyond the zone                                             to get involved. Effective lead-
constitutes the outside environ-                                          ership and two-way communi-
ment. For example, because of                                             cation can overcome both.
the pressure to perform at the
sector commander level, these                                             Creative Thinking
leaders will want to recruit                                                   Sector commanders should
highly skilled officers to gain                                           capitalize on the knowledge of
an advantage. This can happen                                             all personnel. The ability to ef-
because, as with most human                                               fectively change is limited only
beings, officers want to work                                             by the imagination and dedica-
for leaders who create and com-                                           tion of the officers assigned to
municate a clear vision of what      © Photos.com                         the sector. As the organization
they want to accomplish and                                               pushes down responsibility to
how they intend to get there.        they should distance themselves      meet goals to the lower levels,
Effective sector command-            from hands-on operation and          opportunities for officers to
ers prevent such losses by not       delegate that authority to the       think outside the box increase.
only creating a vision for their     first-line supervisor. For sector         During the implementation
areas but also developing their      commanders, their principle          phase, short-term objectives,
personnel to fill individual skill   task centers on using data and       initiatives, and action plans
gaps and helping them attain         other empirical information to       must be used as a scorecard
their career aspirations.            develop a strategic plan for their   against the long-term strategic
     Effectiveness as a sector       area, with the main function         goals. Initiatives could include
commander requires com-              becoming crime management.           a targeted crime trend, officer
petency as both a leader and         The individual shift supervisor      training, and steps toward com-
manager. Such individuals            reporting to the sector com-         munity involvement, and all can
must understand the SWOT             mander has responsibility for        be going on at the same time.
system and how to properly           time management and the over-        The key is to have a specific
implement it when developing         all effectiveness and efficiency     measure to determine the degree
a long-range strategy for overall    of day-to-day operations.            of success for each initiative at




6 / FBI Law Enforcement Bulletin
the end of the specified period.     assigned to report to the same        organizations should carefully
Sector commanders should             shift, does the sector command-       think through the decision to
employ the SMART (specific,          er relay orders through the first-    change to sector policing and
measurable, attainable, realistic,   line supervisor or go directly        complete a thorough plan of the
and timely) process in creating      to the officers assigned? In the      implementation process.
short-term goals.4 Action plans      first case, the sector commander
can be further broken down into      entrusts that the first-line su-      CONCLUSION
action steps that list the who,      pervisor accurately and timely            Sector policing has great




                                      “
what, and when of responsibili-                                            potential for law enforcement
ties and become a metric                                                   agencies seeking to provide in-
for accountability.                                                        creased effectiveness in crime-
                                                                           fighting strategies and better
Day-to-Day Operations                 The abilities of sector              development of community re-
     Working with and through             commanders to                    lationships, as well as providing
the first-line supervisors is not       accomplish goals                   opportunities for challenging
only imperative for effective           are directly related               and developing their officers.
day-to-day management of the             to those of their                 Before beginning any major
sector but also for development        subordinate leaders                 change in operational philoso-
of the organization’s future           to lead and manage.                 phy, they should undertake an




                                                                ”
leaders. Even though sector                                                in-depth realistic analysis to
commanders have complete                                                   show the amount of organi-
responsibility for their areas,                                            zational preparation needed.
they cannot be available all of                                            Then, opportunities for success
the time and must trust their        notifies the shift officers about     will be understood within the
first-line supervisors to have       the orders. When multiple sec-        context of changing from one
the skills and desire to meet the    tor commanders give different         organizational philosophy to
goals of the sector. The abili-      orders, the possibility exists for    another, initiated with a clear
ties of sector commanders to         the first-line supervisor to show     understanding of the impact on
accomplish goals are directly        loyalty to one sector over an-        the organizational structure and
related to those of their sub-       other and not give equal priority     processes necessary to carry out
ordinate leaders to lead and         to the directives. Conversely, in     the endeavor.
manage. Decisions must be            the latter situation, if the sector
made according to the level of       commander gives orders direct-        Endnotes
direct autonomy that first-line      ly to the officers and bypasses           1
                                                                                 The views expressed in this article
supervisors have for taking such     the first-line supervisor, the        reflect those of the author and should not
                                                                           be considered as representing an official
actions during their shifts. In      commander can hold the offi-
                                                                           position of the author’s employing agency.
a simple formula, the amount         cers directly accountable for the         2
                                                                                 For additional information, see Randy
of unrestricted control over the     results; however, the first-line      Garner, “‘SWOT’ Tactics: Basics for
operations of the officers can be    supervisor may not be able to         Strategic Planning,” FBI Law Enforcement
directly compared with the level     accurately plan and implement         Bulletin, November 2005, 17-19.
                                                                               3
                                                                                 The author adapted information in this
of freedom that first-line super-    time management duties. How
                                                                           section from Essentials of Strategy (Bos-
visors have to make decisions.       orders are delivered and officers     ton, MA: Harvard Business School Press,
     As an example, when per-        are held accountable reiterates       2006) 22-23, 151.
sonnel from different sectors are    the author’s original suggestion:         4
                                                                                 Garner, 18.




                                                                                                        April 2010 / 7
 Perspective

Universal Policing
Counterterrorism Lessons
from Northern Ireland
                                                       O        ver the past several hundred years, ongo-
                                                                ing conflicts have occurred in Northern
                                                       Ireland between members of the Catholic and
By Justin Schoeman                                     Protestant communities. This feud, most recently
                                                       known as The Troubles, has evolved from a local
                                                       religious clash to an insurgency movement against
                                                       Northern Ireland and British authorities. The Po-
                                                       lice Service of Northern Ireland worked closely
                                                       with the British military to end escalating violence
                                                       in the region. The relationship between these two
                                                       bodies developed from the police supporting the
                                                       military and vice versa. With the use of counter-
                                                       insurgency tactics, the government of Northern
                                                       Ireland worked with the Catholic community and
                                                       members of the insurgency to compromise on di-
                                                       viding issues.1
                                                           Lessons learned from counterinsurgency ef-
                                                       forts in Northern Ireland incorporate fundamental
                                                       principles both universal to people across the
                                                       globe and capable of cutting through cultural lines.
                                                       Therefore, they could be applied to similar battles
                                                       in Iraq and Afghanistan. The Northern Ireland
                                                       authorities successfully phased out British con-
                                                       ventional military to allow for police supremacy,
                                                       creating a police force that the people of Northern
                                                       Ireland perceived not only as legitimate but one
                                                       that addressed grievances within the disgruntled
                                                       community as well.
                                                       History
                                                           The struggle in Ireland dates back as far as
                                                       1691 when the British military defeated Irish
                                                       General Patrick Sarsfield and continued to occupy
                                                       Ireland. This loss was the last organized resistance
                                                       to English rule in Ireland; the new opposition in-
                                                       volved conflict waged without rules and by irregu-
                                                       lar methods.2 As Ireland remained under British
                                                       rule for hundreds of years, the feud between the
                                                       Protestants and the Catholics became extremely
                                   © iStockphoto.com
                                                       bitter. The Irish Catholics felt marginalized due to




8 / FBI Law Enforcement Bulletin
the closeness between the Protestants and the Brit-    Dublin. The violence came to a dramatic pause
ish government. Random acts of violence between        after Protestants and members from the political
Catholics and Protestants continued as the years       arm of the IRA and the British government signed
passed. In May 1921, the Government of Ireland         the 1998 Good Friday Agreement. This political
Act divided Ireland into the six predominantly         ceasefire ended a majority of the paramilitary
Protestant counties of Ulster in the north and the     violence in Northern Ireland by adopting political
remaining 26 primarily Catholic counties in the        concessions agreeable to all parties.4
south. Northern Ireland was created as an “Irish           From 1969 to 1998, approximately 3,251
Free State” with British dominion status, falling      deaths resulted from terrorist activity during The
short of complete sovereignty.3                        Troubles. An overwhelming number of those killed
                                                       were civilians, including more than 50 children
Increase in Hostility                                  under 14 years of age. Over 30,000 people were
     In the late 1960s, the tipping point of Catholic injured or maimed.5 The British Army sustained
hostility emerged. Police harassment, exclusion a total 719 deaths from The Troubles in Northern
from public service appoint-                                               Ireland during the same peri-
ments, and the refusal of Cath-                                            od. An analysis of the soldiers’


                                     “
olic political representatives in                                          deaths illustrated the type of
parliament increased the com-                                              terrorist activity undertaken
munity’s sense of alienation.                                              by the IRA/PIRA. While op-
From this impression of isola-            Police agencies and              erating within a sympathetic
tion originating from the gov-           militaries…must work              locality, the IRA/PIRA could
ernment, including the Royal            together to better fulfill         choose their targets and oper-
Ulster Constabulary (RUC),                 their joint mission.            ate at an advantage over the
the Provisional Irish Repub-                                               British Army. This advantage
lican Army (PIRA)—an off-                                                  could only be overcome with


                                                                ”
shoot of the Irish Republican                                              training and the cooperation
Army (IRA)—organized itself                                                of the RUC. Due to terrorist
into a paramilitary organiza-                                              activity, 176 members of the
tion to defend the Catholic mi-                                            British Army were consid-
nority’s civil rights and to unite Ireland. Protestant ered murdered by the IRA/PIRA (24.4 percent of
and Catholic paramilitary groups clashed in the all fatalities). Many of these soldiers, part-time
streets of Northern Ireland using terrorist tactics, members of the Ulster Defence Regiment, were
killing hundreds of innocent victims. In response, killed on their way to and from work. Casualties
the British military attempted to crack down on that resulted from direct operational contact with
the militant groups by conducting house-to-house the enemy only accounted for 26.2 percent of the
searches and establishing internment-holding total. A majority of the British Army’s casualties
facilities for potential PIRA members. These ap- were caused by bombs, land mines, and booby-trap
proaches caused the perceived pro-Protestant devices.6
British military to lose more legitimacy, resulting
in additional PIRA recruits. The cycle of violence Identification of Roles
continued throughout Ireland with shootings and            Police agencies and militaries have very
then bombings in Belfast, Derry, Birmingham, and different roles when dealing with insurgencies.




                                                                                               April 2010 / 9
Therefore, the two units must work together to bet-       Enquiries Team, a policing group organized to re-
ter fulfill their joint mission. Based on experiences     examine all of the deaths that occurred as a result
in Northern Ireland, British Royal Marine Colonel         of the security situation in Northern Ireland be-
Mike Page stated that the military mission during         tween 1969 and 1998, attempted to bring closure to
the infancy of counterinsurgency events should            the families of those killed during The Troubles. A
involve stabilizing the area and preparing for the        Human Rights Body was formed to review police
police, a civilian corps, to take a primary role in se-   training and policies, ensuring the preservation of
curing the community. As the violence within the          human rights principles. To distance itself from
community subsides and                                                                the British (a major point
the police become ready                                                               of friction) and mirror the
to cope with the environ-                                                             Northern Ireland popu-
ment, a political process                                                             lous, the RUC changed
should be set in place to                                                             its name and reformed
address the problems that                                                             into the Police Service of
originally stimulated the                                                             Northern Ireland (PSNI)
insurgency. While police                                                              in 2001 and mandated that
strength evolves, the mili-                                                           approximately 50 percent
tary should begin to play                                                             of the police force to
a supporting role. Toward                                                             include Catholics. These
the end of the counterin-                                                             and other PSNI programs
surgency campaign, the Belfast City hall                                 © Photos.com brought the battle-fa-
military’s presence within                                                            tigued community and
the community must terminate or become almost             police services closer together, resulting in fewer
nonexistent. Ensuring cooperation between the             acts of violence.
police and the military throughout the course of              To address grievances and public complaints,
the counterinsurgency campaign and phasing out            the PSNI initiated internal police service programs,
military operations as irregular warfare progresses       along with external groups, to guarantee unbiased
into police-type incidents proves essential to de-        and fair law enforcement. Programs started by the
veloping a reasonable end state for the mission.          police entailed the adoption of a Policing Board of
                                                          Northern Ireland and a District Policing Partner-
Resolutions                                               ship. Although these programs review different
    One of the main reasons The Troubles occurred         policing issues, they oversee police actions. Fur-
in Northern Ireland involved the Catholic com-            ther, the PSNI created the Ombudsman’s Office to
munity’s perception of the police as illegitimate.        review use-of-force issues and shooting incidents.7
The Good Friday Agreement in 1998 resulted in             One concern evaluated by the Ombudsman’s Of-
the organization of the Independent Commission            fice involved the use of an incapacitating spray
on Policing, which sought to review the Police            during riot events to control crowds as a less lethal
Service of Northern Ireland and make recommen-            option in the use-of-force criterion.
dations on how to improve the police force. After
the analysis, the commission made 175 recom- Conclusion
mendations that would make police services more     Religious groups in Iraq or Afghanistan model
transparent, accountable, and representative of those of Northern Ireland. Each community has
the Northern Ireland community. The Historical internal friction in which one or two parties feel




10 / FBI Law Enforcement Bulletin
marginalized. Citizens in every community in the                   3
                                                                      BBC History, Northern Ireland: The Troubles, “The Road to
world want not only a stable and secure place to                Northern Ireland, 1167 to 1921,” http://www.bbc.co.uk/history/
                                                                recent/troubles/overview_ni_article_01.shtml (accessed June 24,
live but to be treated fairly as well. Counterinsur-            2009).
gency efforts should follow the successful North-                   4
                                                                      BBC History, Northern Ireland: The Troubles, “The Road to
ern Ireland example by phasing out the military’s               Northern Ireland, 1963 to 1985,” http://www.bbc.co.uk/history/
presence as stability increases and establishing                recent/troubles/the_troubles_article_08.shtml (accessed June 24,
a legitimate civilian police serviceone that is                2009).
                                                                    5
                                                                      Geraghty, v.
transparent, fair, and unbiased and addresses the                   6
                                                                      Ron Austin, “British Army Fatal Casualties—Ulster Troubles,
community’s needs.                                              1969-1998,” http://goliath.ecnext.com/coms2/gi_0199-3300357/
                                                                British-Army-fatal-casualties-Ulster.html (accessed June 24, 2009).
                                                                    7
                                                                      Superintendent Gary Gracey (PSNI), speech to the U.S. Ma-
Endnotes                                                        rine Corps University Command and Staff College (Quantico, VA,
   1
     Colonel Mike Page, speech to the U.S. Marine Corps Uni-    February 21, 2008).
versity Command and Staff College (Quantico, VA, February 22,
2008).
   2
     Tom Geraghty, The Irish War (Baltimore, MD: Johns Hop-     Special Agent Schoeman serves in the Leadership
kins University Press, 2000), xxii.                             Development Unit at the DEA Academy.




                                                  The Bulletin’s
                                                 E-mail Address
              © Digital Vision


                                                                T    he FBI Law Enforcement Bul-
                                                                     letin staff invites you to commu-
                                                                nicate with us via e-mail. Our Internet
                                                                address is leb@fbiacademy.edu.
                                                                    We would like to know your
                                                                thoughts on contemporary law en-
                                                                forcement issues. We welcome your
                                                                comments, questions, and suggestions
                                                                about the magazine. Please include
                                                                your name, title, and agency on all
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                                                                    Also, the Bulletin is available for
                                                                viewing or downloading on a number
                                                                of computer services, as well as the
                                                                FBI’s home page. The home page
                                                                address is http://www.fbi.gov.




                                                                                                                  April 2010 / 11
Bulletin Reports


     Children and Violence
          Children’s Exposure to Violence: A Com-     victims of robbery, vandalism, or theft; 1 in 10
     prehensive National Survey discusses the         suffered from child maltreatment, including
     National Survey of Children’s Exposure to        physical and emotional abuse, neglect, or a
     Violence sponsored by the Office of Juvenile     family abduction; and 1 in 16 were victimized
     Justice and Delinquency Prevention and sup-      sexually. More than 1 in 4 witnessed a violent
     ported by the Centers for Disease Control        act, and nearly 1 in 10 saw one family member
     and Prevention. Conducted between January        assault another. Multiple victimizations were
     and May 2008, it measured the past-year and      common: more than one-third experienced
     lifetime exposure to violence for children age   2 or more direct victimizations in the previ-
     17 and younger across several major catego-      ous year, more than 1 in 10 experienced 5 or
     ries: conventional crime, child maltreatment,    more direct victimizations in the previous
     victimization by peers and siblings, sexual      year, and more than 1 in 75 experienced 10
     victimization, witnessing and indirect vic-      or more direct victimizations in the previous
     timization (including exposure to community      year.
     violence and family violence), school vio-           Reports of lifetime exposure to violence
     lence and threats, and Internet victimization.   were generally about one-third to one-half
     This survey is the first comprehensive attempt   higher than reports from the past year, al-
     to measure children’s exposure to violence in    though the difference tended to be greater for
     the home, school, and community across all       less frequent and more severe types of vic-
     age groups from birth to age 17, as well as      timization. For example, more than 3 times as
     the cumulative exposure to violence over the     many respondents reported being victims of
     child’s lifetime.                                a kidnapping over their lifetimes as did in the
          The survey confirms that most children      past year. Nearly 7 in 8 children who reported
     are exposed to violence in their daily lives.    being exposed to violence during their life-
     More than 60 percent of those surveyed were      times also reported being exposed to violence
     exposed to violence within the past year,        within the past year, which indicated that these
     either directly or indirectly (as a witness to   children were at ongoing risk of violent vic-
     a violent act; by learning of a violent act      timization. The reports of lifetime exposure
     against a family member, neighbor, or close      also indicated how certain types of exposure
     friend; or from a threat against their home      change and accumulate as a child grows up.
     or school). Nearly one-half of the children          To obtain the complete report (NCJ
     and adolescents surveyed were assaulted at       227744), access the National Criminal Justice
     least once in the past year, and more than 1     Reference Service’s Web site at http://www.
     in 10 were injured in an assault; 1 in 4 were    ncjrs.gov.




12 / FBI Law Enforcement Bulletin
Tort Cases
    The Bureau of Justice Statistics bulletin Tort Bench and Jury Trials in State Courts, 2005
discusses tort cases concluded by a bench or jury trial in a national sample of jurisdictions in
2005. Topics include the types of tort cases that proceed to trial, the differences between tort
cases adjudicated by judges and juries, and the types of plaintiffs and defendants represented
in tort trials. The report also covers plaintiff win rates, punitive damages, and the final award
amounts generated in tort trial litigation. Finally, trends are examined in tort trial litigation in
the nation’s 75 most populous counties, based on comparable data in 1996, 2001, and 2005. The
report showed that together, bench and jury trials accounted for an estimated 4 percent of all
tort dispositions in 2005. Punitive damages were sought in 9 percent of tort trials with plaintiff
winners. The median punitive damage award was $55,000. In the nation’s 75 most populous
counties, the number of tort trials declined by about one-third between 1996 and 2005. The
complete document (NCJ 228129) can be accessed at the National Criminal Justice Reference
Service’s Web site, http://www.ncjrs.gov.




Public Defender Offices
    The Bureau of Justice Statistics has released Public Defender Offices, 2007—Statistical
Tables. This document examines offices that provide representation for indigent defendants
through a salaried staff of full-time or part-time attorneys employed as direct government em-
ployees or through a public, nonprofit organization. Public defender offices are categorized ac-
cording to whether they are principally funded and administered at the state government level,
the county level, or through a combination of state and county government. Topics include public
defender office staffing, caseloads, expenditures, and standards and guidelines used by the nearly
1,000 public defender offices found across 49 states and the District of Columbia.
    Findings showed that in 2007, 964 public defender offices across the nation received nearly
6 million indigent defense cases. Half of all state-based public defender offices had formal
caseload limits in place in 2007. Misdemeanor cases accounted for about 40 percent of all cases
received by state-based public defender offices and about 50 percent of the cases received by
county-based offices. For additional information, access the complete report (NCJ 228538) at
the National Criminal Justice Reference Service’s Web site, http://www.ncjrs.gov.




                                                                                           April 2010 / 13
   Futures Orientation in Police
   Decision-Making Practices
   The Promise of a Modified Canadian Model
   By MIChAEL BUERGER, Ph.D., and JOhN JARVIS, Ph.D.




  © shutterstock.com




L
        aw enforcement officers      circumstances and expectations.     of community policing indi-
        are the guardians of the     At worst, they embody a knee-       cates that the most successful
        past. Whether out of         jerk reaction to a crisis du jour   approach may be a covert one.
personal proclivity or as a result   long since subsided.                Massive publicity that spoke to
of being immersed in the po-             The inherent instability of     public concerns without ad-
lice subculture, their cognitive     a chief executive’s position        dressing those of the officers
maps of American culture are         means that a futures orientation    often accompanied attempts to
flash frozen, an instant in time     cannot be vested in a single per-   establish community policing.
that encompasses a mythical          son. Although individual leader-    The result was raised expecta-
past. They enforce laws cre-         ship is important, the entire law   tions in one constituency and
ated by legislatures who hold        enforcement agency must be          resistance in others.1 To avoid
similar visions. At best, those      infused with a futures orienta-     a repeat of that phenomenon,
laws reflect a past set of social    tion. As a guide, the experience    the first steps toward creating




14 / FBI Law Enforcement Bulletin
a futures orientation need to be      cognitive maps traditionally             The difficulty in centralized
practical, not exhortational.         have resided in the individual.     functions of this nature is that
    In this case, being practi-       Law enforcement agencies            they can process only that data
cal means recognizing both the        rarely have developed the           routinely archived by the agen-
possibilities and the limits of       means to tap into the collective    cy, including traditional crime
what can be done with police          understanding of patrol officers    reports and, perhaps, 911 data.
resources. Also, being practical      and detectives, resulting in the    Most other information remains
requires developing more than         fragmentation of institutional      ephemeral, resident in the mem-
just a conceptual vocabulary          memory.2                            ories of individual officers and




                                       “
that describes the outcomes                                               small units but not accessible
but, rather, defines intermediate                                         beyond the precinct boundaries.
action steps—both processes                                               It also is vulnerable to absence
and results—in language mean-                                             (e.g., sick days, vacations, court
ingful to the officers who will          ...being practical               attendance, and training assign-
make these happen.                      means recognizing                 ments) and extinguished by
    Broadly speaking, the                                                 transfer or retirement except in
desired effect is not all that dif-
                                       both the possibilities             the rarest of circumstances. Yet,
ferent from the changes sought         and the limits of what             it is this information—not data,
by the community-policing                can be done with                 but information—that holds the
movement. The task involves              police resources.                greatest promise for develop-




                                                                ”
changing the police mind-set                                              ing anticipatory policing: that
from that of a fraternity of                                              which positions itself to shape
protectors operating outside the                                          the immediate future, rather
community to one of a network                                             than to react to it.
of community-building agents              The organizational response          Innovation fatigue is a real
integrated into the criminal          generally has been to invest        obstacle to creating change in
justice system.                       the analytical power in special     law enforcement organizations.
    Leaders must develop              units, crime analysis, or crime     Rather than introduce a new
a means to break out of the           mapping. Although they need         term, such as anticipatory polic-
confinement of the immediate          not be, these functions tend to     ing, it would be better to work
and instill a capacity for both       be centralized with command-        within the existing law enforce-
recognizing and consciously           level officers as the primary       ment vocabulary. Problem-
seeking the small trends of           recipients of the work. Individ-    oriented or problem-solving
change occurring within their         ual officers or units can request   policing is the most intuitive
areas. Effective officers always      specific analyses to supplement     to officers at the line level and
have done this as part of the         local investigations or problem-    provides a logical framework
creation of cognitive maps they       solving efforts. Moreover, some     for blending a futures approach
call “street sense”; some have        departments encourage officers      with a familiar and reasonable
specialized in narrow interests,      to engage in their own crime        accepted conceptual framework.
such as burglars and robbers,         mapping and crime analysis to       As an example, the authors
while others have developed           augment their cognitive maps of     explore a Canadian approach
a broader vision. But, these          their assigned, or beat, areas.     that offers an alternative to the




                                                                                               April 2010 / 15
SARA (scanning, analyzing,          of those actors most affected by     changes in recent times and tra-
responding, and assessment)         the problem. Pushing officers        jectory of these), unintended
model that gave the law en-         beyond the familiar channels of      consequences, means of miti-
forcement world a foundation        law enforcement thinking will        gating them, and realistic ex-
it could use at the line level of   lead to a new awareness of the       pected outcomes in light of the
policing.3                          depths of community resources        intervention and its consequenc-
                                    and the multiple intervention        es and mitigation. And, finally,
THE MODEL                           tactics that might be brought to     partners would include resourc-
     Clients, analysis, partners,   bear upon a problem.                 es and limitations, as well as




                                     “
response, and assessment make                                            motivations and inhibitors.
up CAPRA, which holds some
promise for infusing futures                                             Implementing Methods
thinking into policing. With             Leaders must                         CIAPRA assessments must
a slight modification of this                                            be built into the regular calen-
Canadian perspective to include
                                       develop a means                   dar and stress the officer’s role
information, the new acronym          to break out of the                as the center of an information-
CIAPRA represents a second-           confinement of the                 gathering network. While quar-
generation model for problem         immediate and instill               terly assays are useful, officers
solving. Such an approach             a capacity for both                should attend to the process in
lends itself well to a futures         recognizing and                   real time, adding observations
orientation on a small scale, a      consciously seeking                 about changes as they are made.
foundation upon which to build         the small trends                  The first round can identify the




                                                               ”
subsequent layers as an officer’s         of change....                  main players in the officers’
career progresses.                                                       beats and include legitimate
     The additional element of                                           citizens and knowledgeable
information transforms the                                               informants on the fringe of the
process from simple problem             Four critical elements of the    criminal element.
analysis to baseline intelligence   CIAPRA model can be expand-               Shift supervisors should
gathering. Requiring officers to    ed. First, clients would include     emphasize and facilitate on-
identify clients of a particular    stakeholders who have a posi-        going interaction among of-
action moves them beyond the        tive or negative influence and       ficers working the same beat
simple tactical view. Similarly,    those possibly disenfranchised,      area in different time frames.
the partners element broadens       such as targets of police action.4   For example, the main players
the perspective of responsibility   Second, information needed           likely will have some variation
and capacity. It takes the solu-    would cover two primary ques-        by time of day, and the officers’
tion out of the exclusive domain    tions: Where to obtain it? and       own observations certainly will
of the police and complicates       How to develop it if not readily     prove diverse. The process of
the process of crafting one at      accessible? Third, analysis, at      comparing information will
the same time. Adding informa-      least initially, would involve the   build a more comprehensive
tion to this mix should nudge       driving forces behind the prob-      understanding of the beat for all
the effort even further, as data-   lem, guardianship issues, pos-       officers, regardless of whether
bases and repositories of knowl-    sible points of intervention, im-    they work rotating assignments
edge exist outside the small core   pact of such intervention (e.g.,     or steady shifts.




16 / FBI Law Enforcement Bulletin
     Agencies will need to                                 The Future of Policing
develop a metric for assessing
officers’ work. They must dis-                    The FBI actively explores the future of polic-
cover when officers are—                      ing through the Futures Working Group (FWG), a
  • doing a good job;                         partnership between the agency and the Society of
                                              Police Futurists International (http://www.policefu-
  • just providing lip service;               turists.org). The mission of the FWG is to promote
  • adopting a “this too shall                innovation through the pursuit of scholarly research
     pass” attitude; or                       in the area of police futures to ethically maximize
  • attempting to meet the new                the effectiveness of local, state, federal, and interna-
     demands but encountering                 tional law enforcement bodies as they strive to main-
     difficulties through a lack of           tain peace and security in the 21st century. Members
     skills or an intuitive under-            have completed projects on such topics as the use
     standing of the concepts.                of augmented-reality technology, neighborhood-
     Supervisors will know their              driven policing, homeland security, policing mass
own people well enough to                     casualty events, and the future of policing. As part
make these distinctions, assum-               of the FWG, the Futurists in Residence program,
ing the supervisors themselves                operational since 2004 and housed within the Be-
are on board with the program.                havioral Science Unit of the FBI Academy, affords
In the initial stages, upper-level            researchers and practitioners an opportunity to con-
command staff may need to en-                 duct original research.
courage supervisors, as well as
line officers, to give the process
a fair hearing.
     Active or passive resistance
should be relatively easy to          orientation, but retraining or       assessments and nothing more.
detect as the quality of informa-     reorienting serving officers may     Others may elect to make
tion developed will be inferior       prove difficult. It will be neces-   CIAPRA a group exercise. And,
to that done by enthusiastic and      sary to develop a new training       some supervisors may coordi-
willing participants. The task of     regimen to assist those who          nate their squad’s efforts with
distinguishing between resis-         seem to be trying to do a good       those of other personnel who
tance and unskilled but good-         job but not succeeding. In short,    cover the same area on different
faith attempts at compliance          merely setting up the scheme         shifts or days.
will be more difficult.               will not be sufficient. Instead,
     The first few training en-       agencies must build in a struc-      Developing Applications
deavors cannot be expected to         ture that makes visible use of           Using the information de-
produce uniformly successful          the officers’ efforts, an intelli-   veloped productively at the beat
results; each round of CIAPRA         gence bank.                          and precinct level will pose the
assessments should be consid-             How supervisors elect            greater challenge. CIAPRA as
ered as an iterative learning         to manage the new CIAPRA             a training guide or a problem-
experience, further refining the      requirements probably will vary      solving template is task focused
process. CIAPRA can be built          by personality. For instance,        and finite. In other words, the
into recruit training or agency       some may mandate individual          exercise has an end. As an



                                                                                                April 2010 / 17
 The Model                                                                 CONCLUSION
                                                                               CIAPRA is not the only
       C                    Clients
                                                                           model for developing a futures
                                                                           orientation throughout all levels
       I                    Information
                                                                           of law enforcement agencies. It
                                                                           does have the advantage of tap-
       A                    Analysis                                       ping into elements of the police
                                                                           culture that are in place. To
       P                    Partners                                       be successful, however, it will
                                                                           need to be properly managed,
       R                    Response                                       not only at the onset but consis-
                                                                           tently into the future.
       A                    Assessment
                                                                           Endnotes
                                                                               1
                                                                                 U.S. Department of Justice, Federal
                                                                           Bureau of Investigation, Bernard H. Levin
intelligence-gathering tool or a       links between reports and across    and Richard W. Myers, “A Proposal for
                                                                           an Enlarged Range of Policing: Neighbor-
futures perspective, it is open-       time will be a human endeavor,      hood-Driven Policing (NDP),” in Neigh-
ended and subject to constant          not a computerized one.             borhood-Driven Policing Proceedings
revision, which goes against the           Each collection of CIAPRA       of the Futures Working Group, ed. Carl
grain of the operational expecta-      reports will vary according to      Jensen III and Bernard H. Levin (January
                                       the observations made by the        2005), 4-9, http://futuresworkinggroup.cos.
tions of incident-based policing.
                                                                           ucf.edu/publications/Vol1-NDP-FWG.pdf
    The first round will establish     officers and their individual       (accessed August 10, 2009).
a baseline, but, without follow-       writing styles. Agencies can            2
                                                                                 Lawrence Sherman, Evidence-Based
up, it simply will be an exercise      preserve the raw material as        Policing (Washington, DC: Police Founda-
without utility. The organiza-         a text file or a bound volume,      tion, 1998), 5.
                                                                               3
                                                                                 John Eck and William Spelman, Prob-
tional challenge will be to main-      but may find it more useful to
                                                                           lem Solving: Problem-Oriented Policing
tain consistency, to repeat the        invest in text-analysis programs    in Newport News (Washington, DC: Police
process on a quarterly basis, and      for distilling what inevitably      Executive Research Forum, 1987).
to have all officers participate. It   will become huge libraries over         4
                                                                                 Society as a whole (a given, as in “ev-
also will be an agency respon-         time.                               erything we do is for the community”) as
                                                                           an answer alone is so bland and attenuated
sibility to put the information            In the worst-case scenario
                                                                           as to be useless and, therefore, should be
developed to some visible use.         (where no useful archiving and      discouraged by supervisory review.
                                       retrieval process is developed),
Sharing Information                    a residual, if unstructured,
                                                                           Dr. Buerger, a former police officer, is
     Quarterly CIAPRA assess-          archive still will reside in the    an associate professor of criminal jus-
ments at the beat level will not       human memory of the officers.       tice at Bowling Green State University
be uniform nor lend themselves         The greater the amount of pur-      in Ohio and a member of the Futures
to traditional computer databas-       posive interaction and sharing,     Working Group.
es. Much of the beat-level inter-      the greater the probability that    Dr. Jarvis serves in the FBI Academy’s
                                                                           Behavioral Science Unit and heads the
pretations will be intuitive, non-     the information will be retrieved   Futures Working Group.
linear, and narrative. Making          when the need arises.




18 / FBI Law Enforcement Bulletin
                                                                             Notable Speech
The Most Important Profession
By Bob Prout, Ph.D.




    Law Enforcement
    Training Building,
 Alexandria Technical
 College, Alexandria,
           Minnesota




     I     t is an honor to be the guest speaker for the
           first graduating class from the new Law En-
     forcement Training Building. Three weeks ago,
     I had the privilege of teaching the ethics section
                                                             place. During the first day, 8 banks were robbed,
                                                             100 shops were looted, and there were sniper at-
                                                             tacks and rioting resulting in 3 million dollars of
                                                             property damage. Thirty-five years ago this month,
     to law enforcement students in St. Cloud. I asked
     them to name the most important job in the United
     States. Forty-five percent of the students listed law          Dr. Prout, a former Ohio
     enforcement. Forty-five percent got it right. Today,            state trooper, currently
     my hope is the 140 law enforcement students in                 is department chair and
                                                                     director of the Criminal
     this Alexandria Technical College graduating class       Justice Graduate Program at
     believe that law enforcement is the most important        St. Cloud State University in
     job in the United States.                                    St. Cloud, Minnesota. He
                                                              delivered this speech on July
         Why is law enforcement the most important              24, 2009, at the Alexandria
     profession in the United States? Ask yourself                 Technical College Peace
     this question, What happens if a large group of                     Officer Graduation.
     police officers don’t report for duty? History has
     answered that for us. In 1919, the Boston police
     strike lasted only 1 day. The city of Boston was
     plunged into civil chaos. President Wilson branded
     the walkout “a crime against civilization.” In 1969,
     Montreal police went on strike, and anarchy took




                                                                                                  April 2010 / 19
Baltimore police went on strike, and the results realize how little we know. Be hard on yourself, or
were similar to what happened in Boston and you won’t learn and improve. Remember, you’ll
Montreal. When law enforcement stops, civilized never have all of the answers; you will never be
society stops. Other professions are of limited sig- perfect, and you will make mistakes. See your law
nificance when civilized society stops. This is why enforcement license as a license to learn. A good
I believe law enforcement is the most important police officer loves learning.
profession in the United States.                         However, a few years of experience will cre-
    You’ll be working for the people, and you will ate a dangerous time for you. Once you do a job
be entrusted with great responsibility. The Michi- year after year, it tends to get commonplace. This
gan State Police recognizes                                            happens in most professions,
this, and its maxim is “you                                            and it’s no different in law en-


                                    “
must constantly stop to con-                                           forcement. But, in police work,
sider how your decisions will                                          becoming lackadaisical can get
influence people.” You’ll have                                         you or someone else seriously
the power to protect people;                  When law                 injured or killed. However, you
you will have the power to kill            enforcement                 can get injured in another way,
people. You’ll have the power            stops, civilized              too. You’ll see so much of the
to help people; you will have             society stops.               seamy side of life that your
the power to injure people.                                            spirit can get injured. If you feel


                                                             ”
You’ll have the power to take                                          cynicism creeping in, don’t you
away the freedom of the very                                           forget that you have the most
people you work for. I know                                            important job in the United
of no greater responsibility.                                          States.
You will be on the front lines. You will be the most     Last week, I talked with several former law
visible representative of government.                enforcement officers. I asked them how they felt
    Another very important profession is the Unit- after they left police work. They said that they felt
ed States Armed Forces. When law enforcement as if they had dropped off the face of the earth.
and the military do not function, many people One said, “One day I was ‘in the know,’ and the
revert to their primitive natures. Sir Winston day after I left police work, I felt like I was a
Churchill’s view was correct when he stated that ‘nobody.’”
the story of the human race is war. History shows        Many of my former students who were police
us that civilized society crumbles without strong officers and resigned or retired too soon tried to
law enforcement and without a strong military.       get back into law enforcement. They told me to
    You’ve had some excellent instruction at Alex- tell you to not lose sight of how important your
andria Technical College that has prepared you to work is. They said to tell you that the fact that you
enter the profession of law enforcement. Remem- can retire doesn’t mean that you should. They said,
ber, I said, “You have had some excellent instruc- “Tell them not to retire too soon. Tell them that
tion that has prepared you to enter the profession they have the most important job in this country.”
of law enforcement.” At this point, you should           We don’t recognize the most important things
have the feeling of how little you know. This is that happen in our lives as they are happening.
normal because the more we know, the more we We tend to think that more important things will




20 / FBI Law Enforcement Bulletin
happen. But, many times, more important things         know, the more you know how much you don’t
don’t happen. You may feel that after you leave        know. Remember that good police officers love to
police work that police work was the most im-          learn. Remember that most police officers who quit
portant thing that you ever did in your life. If you   law enforcement or who retired too soon regretted
leave too soon, you will regret that decision until    their decision. You remember these things because
the day you die.                                       these are important things to remember.
    I commend you for choosing the profession              I congratulate you on your decision to be a
of law enforcement. You will be part of that “thin     law enforcement officer. You are entering a calling
blue line” that protects us and our way of life.       that protects our way of life. I thank you for your
Remember that you have the most important job          upcoming service to the most important profession
in the United States. Remember that the more you       in the United States.




Unusual Weapon

    Shock Lighter
      Although this metal device looks like a lighter, it is marketed as a prank and delivers a mild
   shock when the user tries to light the flame. Law enforcement officers should be aware that of-
   fenders may attempt to use this shock lighter.




                                                                                             April 2010 / 21
Bulletin Honors



                         The Guardian



                                                                         Gurnee, Illinois,
                                                                        Police Department
                                                                      Near the main entrance to the
                                                                 Gurnee, Illinois, Police Department is
                                                                 The Guardian, presented by the Gurnee
                                                                 Police Citizen’s Police Academy Alum-
                                                                 ni Association. The statue features an
                                                                 officer holding the hand of a small boy
                                                                 on his left; to his right, a young girl
                                                                 is trying to get his attention. It honors
                                                                 men and women of the Gurnee Police
                                                                 Department and all law enforcement
                                                                 officers in general for their service and
                                                                 sacrifice in protecting others.




                                    The FBI Law Enforcement Bulletin seeks submissions from agencies who wish to
                                    have their memorials featured in the magazine’s Bulletin Honors department. Need-
                                    ed materials include a short description, a photograph, and an endorsement from the
                                    agency’s ranking officer. Submissions can be mailed to Editor, FBI Law Enforcement
                                    Bulletin, FBI Academy, Quantico, VA 22135, or e-mailed to leb@fbiacademy.edu.




22 / FBI Law Enforcement Bulletin
                                               Legal Digest

Confessions and the Constitution
The Remedy for Violating Constitutional
Safeguards
By CARL A. BENOIT, J.D.




      © shutterstock.com




   L
           aw enforcement offi-        to the modern criminal investi-       significant importance within
           cers investigating crimi-   gator.1 However, despite all of       the criminal justice process.
           nal activity within the     the physical evidence collected       Law enforcement officers seek
   United States have increasing       in a particular case and all of       to obtain confessions from in-
   amounts of technology to as-        the scientific analysis used to tie   dividuals suspected of criminal
   sist them in identifying those      an individual to the commission       activity even when the physi-
   responsible for criminal con-       of a crime, one nonscientific         cal, scientific, or other evidence
   duct. Advances in DNA col-          technique continues to play an        against an individual is over-
   lection and testing, automated      important role in the investiga-      whelming. Criminal defendants,
   fingerprint identification, and     tion and prosecution of criminal      faced with the possibility that
   a multitude of forensic tech-       activity: the confession. Con-        their confessions may be used
   niques are only a few examples      fessions made to law enforce-         by the prosecution at trial, seek
   of the scientific tools available   ment officers continue to hold        to keep their confessions out of




                                                                                                  April 2010 / 23
court through legal challenges.       it has fairly begun—but to        different constitutional rights,
Both parties recognize the con-       seek out possibly guilty wit-     answering this question in-
tinued influence of the words ut-     nesses and ask them ques-         volves identifying the particu-
tered by criminal defendants on       tions, witnesses, that is, who    lar constitutional safeguard in-
a judge or a jury. There is some-     are suspected of knowing          volved—typically a right found
thing powerful in the words that      something about the offense       within the Fourth, Fifth, or
describe the particular events,       precisely because they are        Sixth Amendments to the U.S.
as well as the thoughts, ac-          suspected of implication          Constitution—and then under-
tions, emotions, or motives, that     in it.2                           standing the remedy that each
would otherwise remain hidden           It is when the police offi-     provision imposes for a
and undiscovered from any sci- cer “seek[s] out possibly guilty         violation.
entific or forensic test. In 1961, witnesses and ask[s] them                 In recent years, the U.S. Su-
U.S. Supreme Court Justice Fe- questions”3 that the law sur-            preme Court decided three cases
lix Frankfurter made the follow- rounding confessions must be           that involved confessions ob-
ing statement about confessions considered. Because confes-             tained in violation of constitu-
that still rings true today:       sions and interrogations are         tional safeguards. And, in each
      Despite modern advances      such a recognized and long-          of these cases, the Supreme
   in the technology of crime      standing tool in law enforce-        Court has made one thing clear:
   detection, offenses frequently ment, articles about all aspects      the Constitution imposes differ-
   occur about which things        of the topic abound. Less fre-       ent remedies for different viola-
   cannot be made to speak. And quently addressed, however, is          tions. Law enforcement officers
   where there cannot be found     a discussion of the legal effect     must be aware of these issues
   innocent human witnesses        of obtaining a confession in vi-     and can find guidance in these
   to such offenses, nothing       olation of constitutional safe-      Supreme Court cases involving
   remains—if police investiga- guards. Because obtaining a             confessions. Armed with this
   tion is not to be balked before confession can implicate             information, law enforcement
                                                                        officers can properly understand
                                                                        the implications of obtaining
                                                                        confessions in violation of con-


                                   “
                                                                        stitutional safeguards.

                                         …one nonscientific             The Fourth Amendment
                                        technique continues                  “The right of the people
                                        to play an important            to be secure in their persons,
                                      role in the investigation         houses, papers, and effects,
                                                                        against unreasonable search-
                                         and prosecution of             es and seizures, shall not be
                                          criminal activity:            violated….”4 Expressly con-
                                           the confession.


                                                                    ”
                                                                        tained within its first sentence,
                                                                        the Fourth Amendment’s pro-
                                                                        hibition against unreasonable
   Special Agent Benoit is a legal instructor at the FBI Academy.       searches and seizures are famil-
                                                                        iar terms to law enforcement




24 / FBI Law Enforcement Bulletin
officers. What is less clear from     evidence obtained in violation           Thus, for purposes of the
the text, however, is the remedy      of the Fourth Amendment is          Fourth Amendment exclusion-
the Fourth Amendment imposes          subject to the remedy of sup-       ary rule, suppression is not
for a violation of its protections.   pression. This rule, established    necessarily automatic: to order
While the Fourth Amendment            in Wong Sun v. United States,       the suppression of evidence,
stands silent on this point, the      has come to be known, and very      including a confession, a court
U.S. Supreme Court has not            nearly defined, by the phrase       is required to determine if the
stood mute. Beginning in 1914,        “fruit of the poison tree.”8 If     evidence in question was ob-
the Supreme Court created a           a proper understanding of the       tained in violation of the Fourth




                                       “
remedy for violations of Fourth                                           Amendment and then determine
Amendment rights—the remedy                                               whether anything occurred that
of suppression.5 This remedy,                                             may have cleansed the evidence
however, was limited to the fed-                                          from this violation. The 2003
eral government and its agents          …verbal evidence                  case of Kaupp v. Texas10 best
until 1961 when, in Mapp v.            obtained in violation              illustrates the application of
Ohio,6 the Supreme Court held              of the Fourth                  the remedy of suppression to a
that the states were required to      Amendment is subject                confession.
suppress evidence obtained in            to the remedy of                      Following the disappear-
violation of the Fourth                    suppression.                   ance of 14-year-old Destiny




                                                                ”
Amendment.                                                                Thetford on January 13, 1999,
                                                                          investigators learned that
The Suppression Remedy                                                    her 19-year-old half-brother,
    The judicially created                                                Nicholas Thetford, had a sexual
remedy of suppression (also           Fourth Amendment rule of sup-       relationship with her and that
called the exclusionary rule), as     pression requires a more for-       both were seen together on the
defined by the Supreme Court,         mal definition, then Wong Sun       day Destiny went missing. On
can be easily stated: evidence        provided that as well.              January 26, 1999, Thetford
obtained in violation of the               We need not hold that all      and Robert Kaupp went to
Fourth Amendment is excluded            evidence is “fruit of the poi-    the sheriff’s office to be ques-
from use at trial. While there are      sonous tree” simply because       tioned about the disappearance.
many exceptions and limits to           it would not have come to         Kaupp was cooperative dur-
this general rule7 (beyond what         light but for the illegal ac-     ing the interview and released.
will be covered within this arti-       tions of the police. Rather,      Thetford, after a long interview
cle), the application of this rule      the more apt question in such     and failing his third polygraph
to evidence is well understood          a case is “whether, granting      examination, eventually admit-
in law enforcement circles.             establishment of the primary      ted to stabbing Destiny and
And, while the suppression              illegality, the evidence to       hiding her body in a drainage
remedy applies more commonly            which instant objection is        ditch. Thetford also implicated
to physical or tangible items,          made has been come at by          Kaupp in the crime. After ob-
the rule’s application clearly          exploitation of that illegality   taining a written statement from
encompasses confessions. This           or instead by means suffi-        Nicholas, detectives sought
became clear in 1963 when the           ciently distinguishable to be     an arrest warrant for Kaupp.
Supreme Court ruled that verbal         purged of the primary taint.”9    Their request for a warrant was




                                                                                              April 2010 / 25
denied.11 Undeterred, three         to 55 years. The Texas Court       the events of the morning
detectives and three uniformed      of Appeals upheld the convic-      of January 27—from being
officers went to Kaupp’s house      tion, and the Court of Criminal    woken up in his bedroom, being
between 2 and 3 a.m. on the         Appeals denied review of the       handcuffed, being transported
morning of January 27 to            case.15 Kaupp appealed to the      to the police station, and being
“get [Kaupp] in and confront        U.S. Supreme Court.                given Miranda warnings—led
him with what Thetford ha[d]            According to the Supreme       to the conclusion that Kaupp
said.”12 Kaupp’s father al-         Court, the admissibility of        was arrested. According to the
lowed the police officers into      Kaupp’s confession turned on       Court, no “reasonable person in
the home, and Kaupp was             the issue of whether Kaupp’s       [Kaupp’s] situation would have
located asleep in his bedroom.                                         thought he was sitting in the
Kaupp was told, “we need                                               interview room as a matter of
to go and talk,” to which he                                           choice, free to change his mind
replied, “OK,” before he was                                           and go home to bed.”16 Because
handcuffed and escorted from                                           Kaupp was arrested without
his home into a waiting police                                         probable cause to support the
car, wearing only boxer shorts                                         arrest, this Fourth Amendment
and a T-shirt.13 He then was                                           violation required suppression
brought to the scene where                                             of the product of the unlawful
Destiny’s body was recently                                            arrest—the confession—unless
located, kept there for between                                        the state could prove the confes-
5 to 10 minutes, driven to the                                         sion was an “act of free will
police station, placed in an                                           [sufficient] to purge the primary
interview room, unhandcuffed,                                          taint” of the unlawful seizure.17
and read his Miranda rights.                                           In this regard, the Court noted
After initial denials, he admit-    © shutterstock.com
                                                                       that factors to consider include
ted his involvement in the                                             observance of Miranda, the
crime but denied any role in        confession was the product         length of time between the
the murder. Kaupp also provid-      of an illegal arrest. The state    arrest and the confession, the
ed investigators with a signed      did not claim to have probable     presence of intervening circum-
statement.14                        cause to arrest Kaupp when         stances, and the level of mis-
    Prior to his trial, Kaupp       the officers went to Kaupp’s       conduct.18 The Court observed
moved to suppress the oral and      home the morning of January        that only one of the above
written statements he made to       27, but asserted that Kaupp was    factors was present—the ap-
investigators on the morning of     not arrested until after he gave   plication of Miranda—to favor
January 27, claiming that the       the confession. According to       the prosecution.19 No substantial
confession was the result of his    the state, Kaupp consented to      time passed between the arrest
unlawful arrest. The trial court    the encounter with the officers    and the confession, and there
denied the motion and ruled         when he said, “OK,” and was        was no allegation by the state
that Kaupp was not placed un-       taken from his bedroom. The        that any significant intervening
der arrest prior to making the      facts, however, did not support    event occurred between the
admissions. Kaupp was con-          the state in either position. In   arrest and confession.20
victed of murder and sentenced      essence, the Court held that       The Court determined that




26 / FBI Law Enforcement Bulletin
the application of Miranda         from a person under these cir-     the effect on physical evidence
warnings, standing alone, was      cumstances were presumed to        located as a result of such a
insufficient to cleanse Kaupp’s    be coerced unless specific warn-   statement? The Supreme Court
statement from the illegal         ings were provided and a waiv-     answered this question in 2004.
arrest.21 The Court remanded       er was obtained. This rule was          Samuel Patane came to the
the case to the state court of     developed primarily to protect     attention of a police officer and
appeals. On remand, the state      the person’s Fifth Amendment       a detective who were investi-
admitted that it was unable to     privilege against self-incrimi-    gating Patane for separate of-
point to any facts that would      nation. According to Miranda,      fenses. Both law enforcement




                                    “
remove the taint from the                                             officers went to Patane’s home
unlawful arrest.22                                                    together, the police officer
    The Kaupp case provides a                                         to investigate Patane’s viola-
simple example of the applica-                                        tion of a temporary order of
tion of the suppression remedy.            …a statement               protection and the detective to
Kaupp was seized in violation         obtained in violation           investigate whether Patane, a
of the Fourth Amendment when       of Miranda procedures convicted felon, illegally pos-
he was arrested without prob-           cannot be used by             sessed a pistol. After arriving
able cause. The product of that      the prosecution in its at the residence and speaking
                                            direct case….




                                                             ”
unlawful seizure was the con-                                         to him, Patane was arrested for
fession that Kaupp gave follow-                                       violating the order of protec-
ing his unlawful arrest. Because                                      tion. The detective began
there was insufficient evidence                                       advising him of his Miranda
that any events intervened         if the warning and waiving pro- rights, but did not get past the
between the unlawful seizure of    cedures are not followed when      right to remain silent because
Kaupp and the confession made      a person is in custody and sub-    Patane interrupted him, claim-
by Kaupp to cleanse the state-     ject to interrogation, any state-  ing that he knew his rights.
ment from the Fourth Amend-                                                        of
                                   ment obtained is inadmissible in The advice27 rights was never
ment violation, the confession     the prosecution’s case in chief.   completed. The detective
was inadmissible.23                Thus,                              then questioned Patane about
                                                                      the pistol, and, though initially
The Fifth Amendment                       The prosecution may not     reluctant to discuss the gun,
     The Fifth Amendment to           use statements, whether         Patane said, “I am not sure I
the U.S. Constitution, as it re-      exculpatory or inculpatory,     should tell you anything about
lates to the taking of confes-        stemming from custodial in-     the [handgun] because I don’t
sions, provides that “no per-         terrogation, unless it demon- want you to take it away from
son…shall be compelled in any          strates the use of procedural  me.”28 The detective persisted
criminal case to be a witness          safeguards effective to secure in light of this response. Patane
against himself.”24 In Miranda         the privilege against self-    admitted that the pistol was
v. Arizona,25 the Supreme Court        incrimination.26               in his bedroom and gave the
held that the environment pres-         If a statement obtained in    detective permission to take
ent in the setting of a custodi-   violation of Miranda procedures the gun. The detective found
al interrogation was so coer-      cannot be used by the prosecu-     and seized the pistol. After
cive that confessions obtained     tion in its direct case, what is   his indictment charging him




                                                                                           April 2010 / 27
                                                                          at trial,” and the Fifth Amend-
                                                                          ment “cannot be violated by the
                                                                          introduction of nontestimonial
                                                                          evidence obtained as a result of
                                                                          voluntary statements.”33 There
                                                                          was no claim that Patane’s
                                                                          statements about the pistol were
                                                                          made involuntarily in viola-
                                                                          tion of the Fifth Amendment.
                                                                          But, the Court has provided
                                                                          protection of Fifth Amendment
                                                                          rights beyond the core protec-
                                                                          tions. In this regard, Justice
 © Photos.com                                                             Thomas noted that the Supreme
                                                                          Court has created certain rules
                                                                          designed to protect the Fifth
as a felon in possession, Pa-        suppression was required by the
                                                                          Amendment’s privilege against
tane sought suppression of the       exclusionary rule, the Court first
                                                                          self-incrimination, including
pistol.29                            determined what constitutional
                                                                          the procedures set forth in the
    The district court sup-          right was implicated. Because
                                                                          Miranda decision. According to
pressed the gun,30 determining       the circuit court of appeals held
                                                                          Justice Thomas,
that the officers lacked probable    that Patane was lawfully ar-
cause for the arrest and the pis-    rested based on probable cause,            …in Miranda, the Court
tol was a fruit of the unlawful      there was no Fourth Amend-              concluded that the possibil-
arrest. The Tenth Circuit Court      ment violation. What was clear          ity of coercion inherent in
of Appeals, while reversing the      to the Supreme Court, however,          custodial interrogations unac-
district court on the issue of       based on the uncontested facts,         ceptably raises the risk that
probable cause, suppressed the       was that the detective obtained         the suspect’s privilege against
gun on the grounds that it was       Patane’s statements without             self-incrimination might be
the fruit of Patane’s unwarned       properly advising Patane of his         violated. To protect against
statement.31 The case was then       rights pursuant to Miranda v.           this danger, the Miranda
appealed to the U.S. Supreme         Arizona. Thus, the legal issue          rule creates a presumption
Court.                               for the Supreme Court focused           of coercion, in the absence
    The issue before the Su-         on the application of the Fifth         of specific warnings, that
preme Court was “whether a           Amendment to the statements             is generally irrebuttable for
failure to give a suspect the        Patane made while in custody.           purposes of the prosecution’s
warnings prescribed by Miran-            According to Justice                case in chief.34
da v. Arizona requires suppres-      Thomas, writing for the major-            Because the Miranda rule
sion of the physical fruits of the   ity of the Supreme Court, the        provides protections that go be-
suspect’s unwarned but volun-        core protection of the Fifth         yond the “actual protections of
tary statements.”32 To resolve       Amendment is its prohibition of      the Self-Incrimination Clause,”
the question of the admissibil-      “compelling a criminal defen-        the Court noted that statements
ity of the gun and whether its       dant to testify against himself      obtained without compliance




28 / FBI Law Enforcement Bulletin
with Miranda, unlike state-         of the Miranda rule to state-      a constitutional violation and,
ments that actually violate the     ments and also highlights the      therefore, was admissible.
Fifth Amendment, can be used        distinction between the Fifth
in certain situations because       Amendment and Miranda. In         The Sixth Amendment
they do not violate the Fifth       the case, there was no argument        The Sixth Amendment to
Amendment.35 For example,           that Patane’s statement was       the U.S. Constitution guar-
“statements taken without           involuntary or coerced—which      antees that “[i]n all criminal
Miranda warnings (though            would have been a violation       prosecutions, the accused
not actually compelled) can be      of the Fifth Amendment. Nei-      shall…have the Assistance of
used to impeach a defendant’s       ther the officer nor the detec-   Counsel for his defence.”41 To
testimony at trial.”36 According    tive compelled Patane to make     protect this right, the Supreme
to the Court, the failure to give   a statement about the pistol.     Court has held that a defen-
Miranda warnings by itself does     Their only omission was in        dant is entitled to have counsel




                                    “
not violate a suspect’s Fifth                                         present at certain critical stag-
Amendment rights. A violation                                         es, including postindictment
of Miranda may occur only                                             interactions between the de-
when the suspect’s unwarned                    The Sixth              fendant and the government.42
statement is introduced at trial,           Amendment                 The Sixth Amendment pro-
and the proper remedy for such                                        tections only apply at certain
a violation is the exclusion of
                                         protections only             critical stages—after the filing
the unwarned statement.37 Ac-             apply at certain            of a formal charge (in federal
                                         critical stages….




                                                             ”
cordingly, “the nontestimonial                                        procedure an Indictment of
fruit of a voluntary statement…                                       Information) or after a court
does not implicate the Self-In-                                       appearance on the charge. And,
crimination Clause” because the                                       because the right applies to the
“admission of such fruit pres-      questioning Patane without        crimes that are the subject of
ents no risk that a defendant’s     finishing the required warn-      the formal charges or court ap-
coerced statements (however         ings and obtaining a waiver.      pearance, it is said to be crime
defined) will be used against       Patane’s statement—unwarned       specific.43 Once the Sixth
him at a criminal trial.”38 Fi-     but otherwise voluntary—was       Amendment right to counsel
nally, the Court determined that    not obtained in violation of the  attaches to the defendant on a
there was no reason to apply        Fifth Amendment. According to particular charge, statements
the remedy of suppression to        the Court in Patane, the full and deliberately elicited from a
the pistol by noting that it had    complete remedy for the un-       defendant by the government
previously decided not to apply     warned statement is the exclu-    may not be used at trial unless
suppression to mere failures to     sion of the statement from the    counsel was present when the
give Miranda warnings.39 Find-      prosecution’s direct case. The    statement was made or unless
ing that the Glock pistol should    exclusion of the statement fully the defendant properly waived
not be suppressed, the Supreme      protected Patane’s Fifth Amend- his Sixth Amendment right.
Court reversed the decision of      ment rights. The nontestimonial But, does a Sixth Amendment
the court of appeals.40             evidence—the pistol—obtained violation prohibit the prosecu-
    The Patane case provides        as result of Patane’s unwarned    tion from using a defendant’s
a straightforward application       statement was not the product of statements for impeachment




                                                                                            April 2010 / 29
purposes? The Supreme Court            trial for any reason, including      (and their agents) of statements
answered this question in 2009.        impeachment, and reversed the        pertaining to the charge.”50
     In January 2004, Rhonda           conviction.47 The state appealed     According to the Court, which
Theel and Donnie Ray Ventris           to the U.S. Supreme Court.           assumed that Ventris’s Sixth
went to the home of Ernest                  The Supreme Court agreed        Amendment right was violated
Hicks likely because they              to hear the appeal to determine      when he engaged in a conversa-
learned that Hicks carried large       “whether a defendant’s incrimi-      tion by the cell-mate informant,
amounts of cash. One or both           nating statement to a jailhouse      the question is the scope of the
killed Hicks, took $300 and            informant, concededly elicited       remedy to be imposed for the
his cell phone, and fled in his        in violation of Sixth Amend-         violation. Here, the Court noted
pickup truck.44 Theel and Ven-         ment strictures, is admissible at    that “excluding tainted evidence
tris were arrested and charged                                              for impeachment purposes is not
with various crimes for these                                               worth the candle.”51 This is so
acts. Theel pleaded guilty to                                               because the interests safeguard-
robbery and agreed to testify                                               ed by excluding the evidence
against Ventris. Prior to his trial,                                        for impeachment purposes are
a police informant was placed                                               “outweighed by the need to
in the holding cell with Ventris.                                           prevent perjury and to assure the
After the informant engaged                                                 integrity of the trial process.”52
Ventris in conversation by tell-                                            Thus, while the violation should
ing Ventris that he looked like                                             prevent the state from using the
he had “something more serious                                              evidence affirmatively, it should
weighing on his mind,” Ven-                                                 not shield the defendant from
tris confessed to the informant                                             his contradictions or untruths.53
that he had “shot this man in          © shutterstock.com
                                                                                 The Court considered the
his head and chest” and stolen                                              possibility that because the
some property from him as              trial to impeach the defendant’s     unlawfully obtained statement
well.45 At his trial, Ventris took     conflicting statement.”48 The        could be used for impeachment
the stand and blamed Theel for         Court began the opinion by           purposes, there is incentive for
both the robbery and murder.46         noting that while the Sixth          police officers to obtain the
The prosecution, over the defen-       Amendment’s core protection is       statement in violation of the
dant’s objection, was permitted        “the opportunity for a defendant     Sixth Amendment. To this end,
to call the cell-mate informant        to consult with an attorney          the Court believed that police
to testify to the prior statement      and to have him investigate          officers have significant incen-
Ventris made about the murder.         the case and prepare a defense       tive to comply with the Consti-
The jury acquitted Ventris of          for trial,”49 the right extends      tution because “statements law-
murder, but convicted him of           further. Also included in the        fully obtained can be used for
burglary and robbery charges.          Sixth Amendment is the right         all purposes.…” Even though
Ventris appealed his conviction.       to have an attorney at certain       there may be some incentive to
The Kansas Supreme Court               “critical interactions between       try to obtain impeachment mate-
held that the statement made by        the defendant and the State,”        rial, the Court finds that this
Ventris to the cell-mate infor-        including “the deliberate elicita-   potential benefit is too specula-
mant was not admissible at             tion by law enforcement officers     tive and not weighty enough to




30 / FBI Law Enforcement Bulletin
overcome the cost of permitting      stand and testified in contradic-   Endnotes
a defendant to commit perjury        tion to the statements he made          1
                                                                               Jim Markey, “After the Match: Deal-
                                     to the informant, the pros-         ing with the New Era of DNA,” FBI
unchallenged.54 Accordingly,
                                                                         Law Enforcement Bulletin, October 2007,
the Court held that the “infor-      ecution was entitled to use the     1-4.
mant’s testimony, concededly         statements to impeach Ventris’s         2
                                                                               Culombe v. Connecticut, 367 U.S.
elicited in violation of the Sixth   testimony. If Ventris did not       568 (1961).
Amendment, was admissible to         take the witness stand, the pros-       3
                                                                               Id.
                                                                             4
                                                                               U.S. CONST. Amend IV.
challenge Ventris’s inconsistent     ecution would not have been             5
                                                                               Weeks v. United States, 232 U.S. 383
testimony at trial” and reversed     able to introduce the testimony     (1913).
the judgment of the Kansas           of the informant.                       6
                                                                               Mapp v. Ohio, 367 U.S. 643 (1961).




                                      “
Supreme Court.55                                                             7
                                                                               Exceptions and limitations to the
     The Ventris case also pro-                                          application of the suppression remedy
                                                                         include standing (Rakas v. Illinois, 439
vides a clear application of the                                         U.S. 128 1978); good faith reliance on a
Sixth Amendment to a confes-                                             search warrant (United States v. Leon, 468
sion obtained in violation of            …investigators                  U.S. 897 (1984); attenuation (Wong Sun v.
its protections. It is important       should ensure that                United States, 371 U.S. 471 (1963); and
to note here that the Court           confessions obtained               independent source and inevitable discov-
accepted the premise that the           comply with the                  ery (Murray v. U.S., 487 U.S. 533 (1988).
                                                                         See also Hudson v. Michigan, 547 U.S.
comments by the jailhouse                Constitution’s                  546 (2006) (Suppression not required for




                                                               ”
informant amounted to an inter-            demands.                      when search warrant executed in violation
rogation of Ventris. Because                                             of knock and announce rule); and Virginia
Ventris’s Sixth Amendment                                                v. Moore, 553 U.S. 164 (2008) (Suppres-
                                                                         sion not required for an arrest made in
rights had attached by virtue                                            violation of state statute but constitution-
of his indictment, no statement                                          ally permissible).
about the pending charge could       Conclusion                              8
                                                                               371 U.S. 471 (1963).
be deliberately elicited from            The cases discussed in this         9
                                                                               Id. at 487, 488.
Ventris unless he had counsel        article describe the different
                                                                             10
                                                                                538 U.S. 626 (2003).
                                                                             11
                                                                                Kaupp v. State of Texas, 2001 WL
present or if he was advised of      costs imposed for obtaining a       619119 (Tex. App.- Hous. (14 Dist.))
his Sixth Amendment rights           confession in violation of the      (Unpublished opinion).
and voluntarily waived them.         safeguards found within the             12
                                                                                Kaupp v. Texas, 538 U.S. 626, 628
Because the questioning by the       Fourth, Fifth, and Sixth Amend-     (2003).
cell-mate informant was as-          ments to the U.S. Constitu-
                                                                             13
                                                                                Id. at 629.
                                                                             14
                                                                                Id. at 628, 629.
sumed to amount to deliberate        tion. In light of the continued         15
                                                                                Id. at 629.
elicitation and because Ventris’s    importance of confessions to            16
                                                                                Id. at 632.
counsel was not present at that      the successful prosecution of           17
                                                                                Id.
time and Ventris had not waived      criminals, investigators should         18
                                                                                Id. at 633.
his Sixth Amendment rights, the      ensure that confessions obtained
                                                                             19
                                                                                Id.
                                                                             20
                                                                                Id.
statement was taken in violation     comply with the Constitution’s          21
                                                                                Id.
of the Sixth Amendment, and          demands. In doing so, investiga-        22
                                                                                Kaupp v. State of Texas, 2004 WL
the informant was prohibited         tors can ensure that confessions    114979 (Tex.App.Hous. (14 Dist.)) (Un-
from testifying during the pros-     obtained can be fully and af-       published opinion).
ecution’s direct case. However,      firmatively used to their fullest
                                                                             23
                                                                                Events that a court should consider
                                                                         in this regard are set forth in Brown v. Il-
once Ventris took the witness        potential by the prosecution.       linois, 422 U.S. 590 (1975).




                                                                                                     April 2010 / 31
   24
       U.S. CONST. Amend V.                       38
                                                      Id. at 643.                             violation occurred and the Court did not
   25
       384 U.S. 436 (1966).                       39
                                                      Id. at 644. See Oregon v. Elstad, 470   rule that this “concession was necessary.”
    26
       Id. at 445.                             U.S. 298 (1985) and Michigan v. Tucker,        It accepted the concession as the law of
    27
       United States v. Patane, 542 U.S.       417 U.S. 433 (1974).                           the case.
630, 634-635 (2004).                               40
                                                      Id.                                         51
                                                                                                     Id. at 1846.
    28
       Id. at 635.                                 41
                                                      U.S. CONST. Amend. VI.                      52
                                                                                                     Id. (quoting Stone v. Powell, 428 U.S.
    29
       Id.                                         42
                                                      Massiah v. United States, 377 U.S.      465, 488 (1976)).
    30
       If the arrest of Patane was in viola-   201 (1964).                                        53
                                                                                                     Id.
tion of the Fourth Amendment, then both            43
                                                      Texas v. Cobb, 532 U.S. 162 (2001).         54
                                                                                                     Id. at 1847.
his statement and the gun would have been          44
                                                      Kansas v. Ventris, 129 S. Ct. 1841,         55
                                                                                                     Id.
subject to suppression.                        1843 (2009).
    31
       Id. at 635-636.                             45
                                                      Id. at 1843.
    32
       Id. at 634, 635.                            46
                                                      Id.                                     Law enforcement officers of other than
    33
       Id. at 637.                                 47
                                                      State of Kansas v. Ventris, 285 Kan.    federal jurisdiction who are interested
    34
       Id. at 639 (Citations omitted).         595 (2008).                                    in this article should consult their legal
    35
       Id.                                         48
                                                      Id. at 1843.                            advisors. Some police procedures ruled
    36
       Id.                                         49
                                                      Id. at 1844-1845 (quoting Michigan      permissible under federal constitutional
    37
       Id. at 641. According to the Court,     v. Harvey, 494 U.S. 344, 348 (1990)).          law are of questionable legality under
“the Self-Incrimination Clause contains its        50
                                                      Id. at 1845. The Court noted that the   state law or are not permitted at all.
own exclusionary rule.”                        State conceded that a Sixth Amendment




                                         FBI Law Enforcement Bulletin
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32 / FBI Law Enforcement Bulletin
                                                                                  Bulletin Notes
Law enforcement officers are challenged daily in the performance of their duties; they face each
challenge freely and unselfishly while answering the call to duty. In certain instances, their actions
warrant special attention from their respective departments. The Bulletin also wants to recognize
those situations that transcend the normal rigors of the law enforcement profession.




                                                Officers Dave Arpin and Ryan Eberhart of the
                                            Saint Peter, Minnesota, Police Department responded
                                            to a distress call at a local river and discovered several
                                            people in the water in danger of drowning. A teenager
                                            and younger sibling had become caught in the strong
                                            current before a man helped them to shore. Then, he
                                            became victimized by the current as was his father who
                                            saw him in trouble and also entered the river, along
                                            with two younger men who tried to assist them. All
   Officer Arpin        Officer Eberhart    four men now were struggling to stay above the sur-
                                            face. Officer Arpin wore a life jacket and a rope around
   his waist and entered the water while Officer Eberhart held the end of the lifeline. With the help
   of an off-duty emergency medical technician, the officers helped the men to shore.




                                 One evening, Officer Timothy Tonkin of the Suffolk, New York, Police
                             Department was dispatched to a vehicle in the water at a boat ramp. Upon
                             arrival, he found an occupied vehicle mostly submerged about 60 feet from
                             shore. Officer Tonkin secured his firearm, entered the water, and swam to
                             the site. After repeatedly striking the rear window with his baton, the glass
                             broke, and the vehicle began to fill with water and sink. Officer Tonkin
                             swam underwater, reached the occupant, and brought him to the surface.
                             An off-duty emergency medical technician helped them into a dinghy. Of-
                             ficer Tonkin received treatment at a local hospital for minor injuries, and
   Officer Tonkin
                             the victim survived.




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                                                 one or more citizens or arrest(s) made at unusual risk to an officer’s safety.
                                                 Submissions should include a short write-up (maximum of 250 words), a
                                                 separate photograph of each nominee, and a letter from the department’s
                                                 ranking officer endorsing the nomination. Submissions should be sent to the
                                                 Editor, FBI Law Enforcement Bulletin, FBI Academy, Quantico, VA 22135.
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Patch Call




    The patch of the Cape Elizabeth, Maine, Po-          Cortland, New York, is called the Crown City be-
lice Department features the scales of justice and   cause of its location in the center of seven valleys in
the Portland Head Light. The oldest lighthouse in    the middle of the state. The patch of its police depart-
Maine, it was commissioned by George Washing-        ment depicts this, as well as the city’s role in importing
ton in 1791 and has guided maritime traffic for      and exporting items by river. Also featured are three
over 200 years.                                      prominent buildings in Cortland.

				
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