ISSN 0014-5688 USPS 383-310 Features - Digital Corpora.pdf

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ISSN 0014-5688 USPS 383-310 Features  - Digital Corpora.pdf Powered By Docstoc
					           April 1998
           Volume 67
           Number 4
         United States
      Department of Justice
       Federal Bureau of
         Investigation
        Washington, DC
          20535-0001

          Louis J. Freeh
            Director
     Contributors' opinions and
     statements should not be
  considered an endorsement by
                                                                  Features
  the FBI for any policy, program,
             or service.
      The Attorney General has
  determined that the publication
  of this periodical is necessary in
    the transaction of the public                  Forensic Diving            Forensic dive teams are proving
  business required by law. Use of
  funds for printing this periodical
                                                By Tod W. Burke and     1     themselves a valuable component of a
                                                                              comprehensive law enforcement
      has been approved by the                     Charles E. O'Rear          response.
       Director of the Office of
      Management and Budget.

     The FBI Law Enforcement
    Bulletin (ISSN-0014-5688) is             Continuing Education             Progressive police managers can
      published monthly by the
  Federal Bureau of Investigation,
     935 Pennsylvania Avenue,
                                               By Domenick Varricchio   10    enhance their departments’
                                                                              professionalism by developing continuing
       N.W., Washington, D.C.                                                 education programs.
  20535-0001. Periodical postage
   paid at Washington, D.C., and
      additional mailing offices.          Community Prosecution              Community prosecution puts prosecutors
    Postmaster: Send address
     changes to Editor, FBI Law
      Enforcement Bulletin, FBI
                                               By Susan P. Weinstein    19    on the street in search of creative
                                                                              solutions to neighborhood crime
    Academy, Madison Building,                                                problems.
  Room 209, Quantico, VA 22135.

                                                          Curtilage           It is important for police officers to know
              Editor
            John E. Ott                         By Edward M. Hendrie    25    which areas around an individual’s home
                                                                              or business are constitutionally
         Managing Editor                                                      protected.
          Kim Waggoner
        Associate Editors
         Glen Bartolomei
         Cynthia L. Lewis
         Bunny S. Morris
           Art Director                                        Departments
          Brian K. Parnell
      Assistant Art Director
       Denise K. Bennett               9 Book Review                        15 Police Practice
          Staff Assistant
         Linda W. Szumilo
                                         I Love a Cop: What Police             Responding to the Needs of
                                            Families Need to Know                 Domestic Violence Victims
         Internet Address
            leb@fbi.gov

           Cover photo
           © Bob Teather

    Send article submissions to
   Editor, FBI Law Enforcement
  Bulletin, FBI Academy, Madison
  Building, Room 209, Quantico,
             VA 22135.




ISSN 0014-5688                                                                                   USPS 383-310
                                                                                                  Photo © Bob Teather




    Forensic
      Diving
 The Latest in
  Underwater
 Investigation
    TOD W. BURKE, Ph.D. and
   CHARLES E. O’REAR, Ph.D.




                                  P       lane crashes, submerged ve-      These include underwater piping;
Picture yourself blind, deep              hicles, boating accidents,       debris; silt; water depth, current,
underwater, weighted down                 suicides, criminal homicide,     and temperature; and contaminants.
with 50 pounds of                 swimming fatalities, ice rescues,        Pollution from lumber, oil, paper,
equipment....Unseen dangers       and lost, damaged, or stolen evi-        and plastics; medical waste; and or-
lie everywhere, waiting to        dence recovery represent just a few      ganic hazards from both people and
entangle you: tree limbs,         of the incidents forensic divers en-     animals also pose a threat to divers.
fishing lines, barbed wire, and   counter. These underwater investi-       NYPD divers once recovered a hu-
sharp steel support bars          gative specialists face a number of      man corpse in a Bronx sewage treat-
jutting from eroded concrete      dangers, from underwater hazards         ment plant.2
bridges....You’re a detective     to critical incident stress, but             Divers need not enter sewage
and this is your crime scene.     emerge from each case better pre-        systems to experience their effects.
In this dark, forbidding world,   pared for the next. Agencies that        Sewers often overflow during
you must collect evidence,        recognize the unique needs of fo-        heavy rains, allowing unfiltered
take measurements...and           rensic diving teams can properly         waste to enter the waterways.
document it all with the same     equip, train, and assist them in their   Exposed to the bacteria, underwater
accuracy as an investigator       public safety missions.                  investigators can contract exotic
on dry land.1                                                              amoebas and parasites, which
                                  ENVIRONMENTAL                            often lodge in the intestine. If
                                  AND PERSONAL RISKS                       left untreated, these parasites
                                      Environmental factors often          migrate to the liver, eventually
                                  create personal risks for divers.        destroying it.3




                                                                                                   April 1998 / 1
                                                                                      search for a missing Virginia tod-
                                                                                      dler, who was later discovered dead
                                                                                      in a river near her home.10
                                                                                           Nitrogen poisoning presents
                                                                                      another risk for divers who conduct
                                                                                      frequent deep-water operations.11
                                                                                      When divers surface quickly, nitro-
                                                                                      gen that has pooled in the blood
                                                                                      bubbles out, causing decompres-
                                                                                      sion sickness,12 or “the bends.”
                                                                                      Symptoms include joint pain, back
                                                                                      or abdominal pain, paralysis, numb-
        Dr. Burke is an associate             Dr. O’Rear is professor and chair of
        professor with the department         the department of forensic science      ness, tingling, inability to control
        of criminal justice at Radford        at George Washington University,        bowels or urine, headache, dizzi-
        University, in Radford, Virginia.     in Washington, DC.                      ness, partial blindness, confusion,
                                                                                      shortness of breath, chest pains,
                                                                                      coughing and/or shock.13
     In addition to sewage, underwa-        important evidence. In one case, a             Cold-water rescues pose unique
ter cables for power and telephones,        rescue dive team responded to re-         dangers for divers. Equipment may
pipelines for oil and gas, and other        ports of a hand protruding from the       malfunction (regulators can
debris make locating evidence diffi-        silt of a California lake, only to dis-   freeze)14 or be lost in cold water.
cult and place divers at risk.4 Divers      cover that the hand was, in reality, a    The potential for disaster is magni-
have become snagged on wires, tree          stick.8 In another incident, two          fied during ice rescues when the
branches, fishing line, rope, and           divers performing an underwater           diver easily could become the vic-
boat propellers. 5 One diver got            cave rescue in Venezuela became           tim. For instance, in 1993, three
tangled on rope during an under-            lost and then separated from each         people died while snowmobiling on
water training exercise. As he              other in the zero-visibility water.       a lake in Midland County, Michi-
reached down to free himself, some          One eventually surfaced to free-          gan. Rescue personnel arrived on
fishing line got caught on his regu-        dom, while his partner remained           the scene and used their own snow-
lator and pulled it from his mouth.         lost. After a 36-hour ordeal, the         mobile to travel to one of the vic-
Though only a foot below the sur-           missing diver was located, dazed          tims. The snowmobile crashed
face, he had to be rescued by his           but alive.9                               through the ice, and the rescue
colleagues.6                                     Forensic diving becomes addi-        worker fell into the frigid water.
     Even during ideal underwater           tionally problematic because water        Fortunately, it took only 3 to 5 min-
rescue and recovery operations, vis-        depths and currents can be deceiv-        utes for the rescue worker to climb
ibility often is poor. Underwater           ing. What appears to be calm, shal-       from the water. In the process, how-
sediment, or silt, can create visibil-      low water on the surface may actu-        ever, he lost his radio, rope, and
ity problems for divers. Just as            ally have deep, swift currents            snowmobile.15
a blizzard can cause a “whiteout,”          underneath. Some rivers are con-               Forensic divers may experience
stirred-up sediment can create a            trolled by dams that may have to be       additional risks, including hypoth-
“silt-out,”decreasing visibility to         closed to prevent swift currents          ermia, hyperthermia, air embolism,
near zero and hampering investiga-          from interfering with rescue opera-       and dehydration. Hypothermia oc-
tions.7 In fact, forensic divers often      tions. Rescuers may need to drain         curs when the body loses heat faster
conduct investigations using only           ponds to provide safety for rescue        than it can produce it.16 Divers ex-
their sense of touch to recover             personnel and assist in recovery ef-      posed to cold water for prolonged
bodies, personal items, or other            forts, as was the case during a           periods are likely to suffer from




2 / FBI Law Enforcement Bulletin
hypothermia, experiencing fatigue,     effective underwater investigations.      in jeopardy.25 Despite their benefits,
blurred vision, repressed breathing,   Their specialized equipment in-           dry suits can cost as much as
and/or a lack of muscle control.17     cludes suitwear, underwater locat-        $1,800, making them less attractive
     In contrast to hypothermia, hy-   ing and navigation devices, and           for dive teams on limited budgets.
perthermia is a rise in the body’s     transportation.                           By contrast, the cost of a wet suit
core temperature due to an inability                                             generally ranges from $200 to
to remain cool. Divers working in      Suitwear                                  $600.26
hot water or hot climates with cold        Suitwear consists of two types:
water can experience hyperthermia,     wet and dry. Wet suits represent          Locating Devices
and dehydration increases suscepti-    standard equipment for divers.                From locating submarines to
bility to the condition. As with hy-   They are designed to protect divers       finding fish, sonar has proven par-
pothermia, hyperthermia can cause      from some of the hazards of under-        ticularly useful for underwater
extreme fatigue, as well as impaired   water recovery, such as fish hooks        searches. Forensic divers find sonar
performance, disorientation, and, if   and broken bottles.22 Dry suits,          particularly useful in deep water; it
severe, loss of consciousness and                                                can help locate the target, as well as
cardiac arrest.18                                                                identify potential hazards. Unfortu-




                                        “
     Air embolism occurs when the                                                nately, sonar may not help divers
lungs overexpand while breathing                                                 identify unknown targets.27
compressed air underwater. It                Agencies that                           Still, sonar has proven useful in
often happens when a diver rushes       recognize the unique                     many underwater investigations.
to the surface without exhaling19                                                Hampered by deep water, swift cur-
and can occur in water as shallow
                                          needs of forensic                      rents, and unknown boundaries, fo-
as 4 feet. Symptoms include head-          diving teams can                      rensic experts used sonar to locate
ache, confusion, weakness, paraly-      properly equip, train,                   and recover bodies and parts of the
sis, unconsciousness, or neurologi-      and assist them in                      aircraft following the crash of TWA
cal disorders.20                          their public safety                    Flight 800 off Long Island, New
     According to experts, dehydra-            missions.                         York, in 1996.28
tion can significantly affect diving




                                                                      ”
operations. For example, a loss of                                               Transportation
only 1.5 liters of fluid can reduce                                                   During a search and recovery
endurance by 22 percent and car-                                                 operation, transportation must not
diovascular efficiency by 10 per-      which surround divers with air in-        only move rescuers to and from the
cent. Moreover, dehydration can        stead of water, insulate divers from      scene but also aid investigators in
cause a decrease in thermal balance    chemical, environmental, and ther-        their missions. Some missions
and an increase in decompression       mal hazards.23 The added thermal          prove more difficult than others. Ice
sickness.21                            protection they provide makes them        rescues, for example, require spe-
     Proper equipment may reduce       especially appropriate for forensic       cial modes of transportation. Ice
the dangers of underwater investi-     divers investigating in waters below      rescue boards and sleds provide the
gation. In addition to using basic     55 degrees.24 However, while the          rescuer a high degree of floatation
diving equipment, underwater in-       layer of air can be beneficial, it also   while allowing easy transition from
vestigators often require special-     can prove dangerous. As a diver           water to ice and protecting divers’
ized gear.                             changes depths, the volume of air in      upper torsos from hypothermia. On
                                       the dry suit changes, as well, affect-    the other hand, these devices are
FORENSIC EQUIPMENT                     ing the diver’s buoyancy. Unaccus-        difficult to maneuver through heavy
   Forensic divers must have the       tomed to such changes, inexperi-          snow, difficult to balance in mov-
necessary equipment to conduct         enced divers may place themselves         ing or open water, and require a




                                                                                                          April 1998 / 3
substantial amount of strength to             Bottom suction often occurs in      buoys, although this might not be
manipulate.29                             waterways containing soft mud bot-      necessary in shallow water. Next,
     Though they require a major fi-      toms. Raising a heavy object under-     the distance from the buoy to a se-
nancial investment, hovercrafts and       water requires greater lifting force    cure marker, such as a bridge, is
airboats are ideal for high-speed         than on land. The amount of suction     measured, and a sketch is made to
and long-distance responses. They         depends upon the size and shape of      record this information. Using un-
prove particularly useful when in-        the object and bottom surface           derwater photographic equipment,
vestigators must respond to remote        environment. Once the item is free      the item is recorded. Divers then
areas or cover large bodies of wa-        of vacuum suction, the possibility      collect the evidence, being careful
ter.30 Like a Jetski with sonar, sonar    exists that the object may break        not to destroy fingerprints or any
jetcrafts are well suited to search       loose uncontrollably, injuring          other characteristics necessary for
missions as long as the water stays       divers and/or destroying evidence.      later identification. It may be neces-
calm.31                                   To minimize these dangers when          sary to immerse the object in fresh
     Vans can provide ground trans-                                               water to preserve its evidentiary
portation to and from the scene,                                                  value, particularly if it was recov-




                                           “
while serving as the command post                                                 ered from polluted or salt water. At
for the operation. Helicopters also                                               this point, divers should follow dry
can transport divers and equipment            Qualification and                   land evidence collection rules and
to the scene, search for wanted and        training exercises for                 chain of custody guidelines.35
missing individuals, and rescue vic-        diving teams should                        The latest in underwater recov-
tims. While television and movies                                                 ery efforts includes the use of ca-
make helicopter rescues appear ef-
                                              supplement, not                     nines. Experts agree that dogs can
fortless, in reality, they require sig-    replace, departmental                  detect people underwater at depths
nificant training to achieve without          physical and/or                     as great as 150 feet.36 While they
harm to both rescuers and victims.             psychological                      sometimes lead investigators
Several people have been injured or            requirements.                      astray, they have proven themselves
killed after falling during a helicop-                                            to be major assets in underwater




                                                                       ”
ter rescue.32                                                                     investigations. For example, when a
     The equipment for a successful                                               fisherman’s capsized boat and gear
underwater investigation is only as       lifting heavy objects, divers           were found floating over a mile
good as its operator. The proper          should use “pillow bags” and “lift      stretch of water on a lake in north-
equipment, in the hands of qualified      bags,” which, when inflated, help       ern Minnesota, rescuers marked the
diving professionals, is essential for    push or pull underwater objects.        search area, a region about 2 miles
safe, effective, and efficient evi-       Overpressurization valves release       long and one-half mile wide. Ap-
dence recovery.                           air from the bags and help control      proaching the area by boat with the
                                          the object’s ascent.33                  rescue team, Kodi, a Newfound-
EVIDENCE RECOVERY                              Objects underwater can shift,      land, jumped into the water before
    The success of any investiga-         trapping victims, endangering res-      they even had reached the search
tion depends on locating, preserv-        cuers, or destroying valuable evi-      site. Doubting her find, the team
ing, and maintaining accurate             dence. Shifting often occurs due to     searched the marked area instead. A
records of evidence, and forensic         strong currents, settling, or manipu-   few days later, the victim’s body
divers face unique challenges in do-      lation by victims or divers. To mini-   was found where Kodi had first
ing so. In addition to poor visibility;   mize this problem, divers should se-    indicated.37
water currents, depth, and tempera-       cure the objects properly.34                 Training and practice are cru-
ture; and underwater hazards, bot-             Divers also must secure items      cial for effective canine operations,
tom suction and object shifting may       of evidence located in the water. To    and handlers should follow certain
hinder recovery efforts.                  do this, they mark the location with    criteria when training their dogs.



4 / FBI Law Enforcement Bulletin
These include planning an appro-       and eventually progresses to the        and completing a minimum number
priate search, working downwind,       water.41 In short, the qualifications   of push-ups and sit-ups. Following
studying wind patterns, recognizing    and training for diving dogs are as     a successful interview, candidates
and understanding the dog’s body       important as the qualifications and     attend a 5-week diving school, often
language and limitations, using        training required for forensic          followed by specialized training,
proper safety practices, eliminating   divers.                                 and mandatory in-service training.42
the use of harnesses, and making                                               In addition to passing a physical en-
training fun.38                        QUALIFICATIONS                          durance test, candidates for the
     Finding the right dog can help    AND TRAINING                            New York Police Department’s
the process. Some agencies prefer          Qualifications and training for     dive team must pass a written div-
Labrador retrievers, while others      forensic divers vary between agen-      ing exam.43
favor golden retrievers, blood-        cies. To qualify for one of the Vir-        Qualification and training exer-
hounds, or Newfoundlands.39 Re-        ginia State Police’s seven diving       cises for diving teams should
gardless of the breed, the best dogs   teams, candidates must have at          supplement, not replace, depart-
have an easygoing temperament,         least 2 years’ experience as troop-     mental physical and/or psychologi-
possess a healthy prey instinct,       ers and receive written endorse-        cal requirements. Forensic divers
swim strongly, and possess a keen      ments from their supervisors. They      must maintain their fitness and edu-
interest in their surroundings. They   must pass a physical test that in-      cational standards in order to stay
also should be trained as puppies.40   cludes swimming 800 yards, tread-       on the team. While these require-
One handler begins training search     ing water for 15 minutes, swimming      ments may appear stringent, divers
dogs at approximately 8 months         75 feet underwater without breath-      must be prepared to handle the
old. Scent training starts on land     ing apparatus, running 1.5 miles,       many environmental and personal




                                             Diver Line Signals
         Line Tender to Diver                                Diver to Diver
             1 tug: “Are you O.K.?”                               1 tug: “O.K.”
             2 tugs: “Stop, change direction, take out            2 tugs: “Pattern completed, release more
                     line”                                                line”
             3 tugs: “Come to surface”                            3 tugs: “Mission completed—object
             4 tugs: “Stop” (danger on surface or in                      found”
                     water)                                       4 tugs: “Help” or “I need assistance”
         Diver to Line Tender
             1 tug: “O.K.”
             2 tugs: “Need more line”
             3 tugs: “Have located object”
                                                                           Source: Professional Association of
             4 tugs: “Need help”                                               Diving Instructors, Underwater
                                                                                 Investigator, handout No. 12.




                                                                                                       April 1998 / 5
dangers associated with underwater       distractions for members of the        a common goal. The work can
investigation, as well as the stress     team, investigators should appoint a   be physically and emotionally
that often accompanies the job.          media relations liaison. This person   demanding and requires strict ad-
                                         can establish a command post to        herence to many procedures, rules,
STRESS MANAGEMENT                        give news people a central location    and standards. Life-and-death deci-
     While many employees experi-        to ask questions and conduct inter-    sions must be made in seconds.
ence occupational stress, forensic       views. In addition, the liaison can    Team members must be able to
divers experience unique stressors,      review news coverage of the event      meet the demands of the job without
including dangerous working con-         with team members to serve as a        complaining or condemning; egos
ditions; intensive and extensive         teaching tool, indicating how the      must take a backseat. Uncoopera-
training; 24-hour availability; high     team can improve not only its rela-    tive members complicate the func-
demand for success; and witness-         tionship with the media operations     tion of the team and place members
ing, preventing, or responding to di-    but its operations, as well.45         at risk.
sasters. As a result, divers and their                                               Cooperation includes effective
supervisors should recognize the                                                communication. Communication




                                          “
signs of stress, such as poor eating                                            during underwater investigations is
and sleeping habits, inability to fo-                                           hindered by the nature of the opera-
cus, failure to perform duties,              Qualification and                  tion. Nonverbal communication is
argumentativeness, unnecessary            training exercises for                the rule rather than the exception.
risk taking, decreased interaction                                              Members often use line signals to
with team members, increased cyni-         diving teams should                  communicate. Team members must
cism, lack of caring, loss of motiva-        supplement, not                    be able to recognize when other
tion, and emotional exhaustion            replace, departmental                 team members are in trouble,
(burnout). Unmanaged stress can              physical and/or                    whether they signal or not. Commu-
cause high blood pressure, fatigue,           psychological                     nication also can be hampered when
eye strain, shallow breathing, head-          requirements.                     volunteers, who do not know the
aches, digestive problems, in-                                                  signals, help with a mission.




                                                                     ”
creased use of alcohol and tobacco,                                                  While the use of volunteers is
and domestic and personal prob-                                                 under debate, the failure to allow
lems. Although stress is an inevi-                                              volunteers to assist may be grounds
table part of the job, dive team              Inviting the media to dive team   for legal action. For example, in
members can take certain steps to        training sessions can eliminate the    Lake County, Illinois, the family of
reduce it, including maintaining         need to explain basic procedures       a drowning victim received a $1.3
proper eating and rest schedules;        during actual events. Encouraging      million out-of-court settlement, af-
participating in a physical fitness      news stories during down times also    ter authorities at the scene pre-
program; practicing relaxation           would increase public awareness        vented two civilian scuba divers
methods; and turning to a friend,        and possibly increase funding for      from rescuing the victim. By the
family member, therapist, clergy         diving operations.46 In short, the     time county rescue divers reached
member, or other person who can          media liaison should work to get the   the scene 18 minutes later, it was
lend a sympathetic ear.44                entire community behind the diving     too late.47 Still, for both safety rea-
                                         team.                                  sons and evidence protection, fo-
MEDIA RELATIONS                                                                 rensic divers must not allow un-
    The scene of a critical incident     TEAMWORK                               qualified individuals to enter the
can become a media event, putting           Underwater investigations           scene. Volunteers who are not
additional stress on the dive            require dedicated individuals          versed in evidence recovery can de-
team. To prevent unnecessary             working as a team to accomplish        stroy valuable evidence.




6 / FBI Law Enforcement Bulletin
     Unfortunately, some smaller
agencies with limited resources
need volunteers to augment their re-
covery operations. Other agencies
share dive team members and
equipment. While this arrangement
may appear cost-effective, difficul-
ties can arise when divers from one
region fail to respond to rescue op-
erations, equipment needed for
operations is stored in another re-
gion, or shared equipment proves
incompatible.
     A specialized regional diving
                                                                                                                          Photo © Bob Teather
team could solve these problems.
One team could specialize in res-
cue diving; another team, evidence        enforcement operations to previ-                   tion Diving Accidents (handout); and Michael
collection. This would minimize           ously unattainable depths.                         Dunn, “Hyberbaric Oxygen Treatment for
the dangers of mishandled evid-                                                              Divers, Searchlines (1996): 14-15.
                                                                                                 14
                                                                                                    D.A. Sommers, “Tittabawassee River
ence for courtroom presentation,          Endnotess                                          Plane Crash,” Searchlines (March/April
while providing the necessary re-             1
                                                R. Foster, “Where Many Fear to Tread         1992): 4-6.
sources to complete the operation         Water...,” The Roanoke Times, August 19,               15
                                                                                                    J. Nielsen, “Team Tips,” Searchlines
successfully.48                           1996, A1, A8.                                      (March/April 1993): 18-19.
                                              2
                                                M. Kaylan, “N.Y.P.D. Not So Blue,” New           16
                                                                                                    J. Kushner, “Field Recognition and
                                          York, May 15, 1995, 48.                            Treatment of Immersion Hypothermia,”
CONCLUSION                                    3
                                                Ibid.                                        Searchlines (September/December 1992): 11.
     The underwater world of a fo-            4
                                                “On the Waterfront,” New York, March 29,         17
                                                                                                    V.P. Igoe, “Police Divers Are Agency
rensic diver is fraught with danger.      1993, 24.
                                              5
                                                                                             Asset,” Searchlines (1995): 25-26.
                                                In Foster, A1; and B. Wilson, “Safety            18
                                                                                                    Jeffries, 13; and Kushner, 11-15.
Whether performing a rescue mis-          Considerations When Diving Under or Near               19
                                                                                                    R.G. Teather, The Underwater Investiga-
sion or salvaging evidence, law en-       Vessels,” Searchlines (1995): 10-11.               tor (Colorado: Concept Systems Inc., 1983), 45.
forcement dive teams brave a                  6
                                                Editorial, Searchlines (March/April              20
                                                                                                    NOAA, Emergency Consultation Diving
myriad of elements to achieve their       1992): 7.
                                              7
                                                                                             Accidents (handout).
                                                S.M. Barsky, “Zero Gravity Diving and            21
                                                                                                    Jeffries, 12-13.
goals. They do so with a dedication       Proper Trim,” Searchlines (September/                  22
                                                                                                    In Foster, A8.
to duty and an esprit de corps that       December 1992): 26-29.                                 23
                                                                                                    Igoe, 26.
makes so many difficult law en-               8
                                                J. Morgan, “Copper Canyon Search,”               24
                                                                                                    J. Hardy and B.S. Shuster, “Gear Review:
forcement duties possible.                Searchlines (1996): 25.
                                              9
                                                                                             Dry Suits,” Searchlines (March/April 1993):
                                                S. Gerrard, “Cave Diving Rescue in           4-8, 16.
     While still in its infancy, foren-   Venezuela,” Searchlines (March/April 1992):            25
                                                                                                    Igoe, 26.
sic diving has made many contribu-        13-16.                                                 26
                                                                                                    Dr. Isaac Van Patten, forensic diver,
tions to law enforcement in search            10
                                                 L. Smith and C.W. Hall, “Body of            Roanoke, Virginia, interview by the author,
and rescue operations. This trend         Missing Toddler Found in River; Probe              September 26, 1997.
                                          Continues,” The Washington Post, A1, A16.              27
                                                                                                    K. Burton, “Sound Navigation and
likely will continue as agencies              11
                                                 Kaylan, 49.                                 Ranging,” Searchlines (September/December
recognize the value of dive                   12
                                                 J.K. Jeffries, “Fluid Management and        1992): 40-43; and J.W. Will, “Sonar: Underwa-
teams, criminals seek alternate           Diving,” Searchlines (March/April 1993):           ter Search and Recovery,” FBI Law Enforce-
means of evidence disposal,49 and         12-13: and Dr. Isaac Van Patten, forensic diver,   ment Bulletin, May 1987, 1-5.
                                          Roanoke, VA, interview by the author, October          28
                                                                                                    S.F. Kovaleski and D. Phillips, “Proof of
accidents happen. With the right          22, 1997.                                          Explosive Eludes Probers in TWA Crash,
training, equipment, and support,             13
                                                 National Oceanic and Atmospheric            The Washington Post, September 3, 1996, A1,
forensic dive teams can take law          Administration (NOAA), Emergency Consulta-         A4.




                                                                                                                           April 1998 / 7
    29                                                  38
       S.J. Linton, “Ice Rescue Equipment for              M. Hardy, “Training the Water Search       1984), 287-318; and R. G. Teather, “Stress and
the 90s,” Searchlines (September/December           Dog Team,” Searchlines (July/August 1992):        Your Dive Team, Searchlines (1996): 10-13.
                                                                                                          45
1992): 6-10.                                        4-11, 24.                                                R.G. Teather, “Performance Anxiety,”
    30                                                  39
       Ibid.                                               G. Haschak, “K-9 to the Rescue,”           Searchlines 9, 3, May/June, 1992, 10; and R.G.
    31
       S.J. Linton, “Sonar Jetcraft,” Searchlines   Searchlines (July/August 1992): 12, 15, 17.       Teather, “Stress and Your Dive Team,
                                                        40
(September/December 1992): 47.                             Oehlke, 22-23, 25.                         Searchlines (1996): 10-13.
    32                                                  41                                                46
       J.F. Segerstrom, “Helicopters,”                     Handler Scott Hansen, in G. Haschak,              D.A. Sommers, “Media Relations,”
Searchlines (1996): 16-21.                          “K-9 to the Rescue,” Searchlines (July/August     Searchlines (1995): 12-14.
    33                                                                                                    47
       Professional Association of Diving           1992): 12, 15, 17.                                       P.H. Colby, “Thanks, but No Thanks...,”
                                                        42
Instructors (PADI), Underwater Investigator                Sergeant Mike Berry, coordinator and       Searchlines (1995): 7-9.
                                                                                                          48
Rigging and Light Salvage, (handout No. 13).        supervisor, Virginia State Police diving teams,          Sgt. Curtis Cook, Montgomery County
    34
       Ibid.                                        interview by the author, February 18, 1997.       Virginia Sheriff’s Department, in K. Loan,
    35                                                  43
       In Foster, A8.                                      Lieutenant Rich Angley, NYPD, in M.        “Divers Volunteer for Tough Job,” The
    36
       In A. Wright, “Boat Collision Devastates     Kaylan, “N.Y.P.D. Not So Blue,” New York,         Roanoke Times, August 15, 1995, (online
Family,” The News and Observer, August 10,          May 15, 1995, 45-49.                              article), http://scholar4.lib.vt.edu/VA-news/
                                                        44
1994, 1A, 4A; and R.G. Teather, “Decomposi-                T. Burke, “The Relationship Between        ROA-Times/issues/1995/rt9508/950815/
tion Gases and the Use of Search Dogs,”             Dispatcher Stress and Social Support, Job         9508150105.html, accessed on August 27,
Searchlines (July/August 1992): 18-19.              Satisfaction, and Locus of Control, doctoral      1996. This site no longer accessible. For the
    37
       D. Oehlke, “Lake Region Search and           dissertation, City University of New York,        text of this article, visit http://archives.roanoke.
Rescue,” Searchlines (July/August 1992):            1991; J. G. Stratton, Police Passages             com/archives/cgi-bin/siwebcli-post.pl.
                                                                                                          49
22-23, 25.                                          (Manhattan Beach, CA: Glennon Publishing,                Igoe, 6.




                                                           The Bulletin’s
                                                         Internet Address


                                                        T     he FBI Law Enforcement Bulletin staff invites
                                                              you to communicate with us via e-mail. Our
                                                         Internet address is leb@fbi.gov.
                                                                 We would like to know your thoughts on
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                                                                  welcome your comments, questions, and
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                                                                                 Also, the Bulletin is available
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                                                                                The home page address is
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8 / FBI Law Enforcement Bulletin
                                                                             Book Review


     I Love a Cop: What Police Families Need to        author addresses what she calls emotional ex-
Know, by Ellen Kirschman, Ph.D.,Guilford               tremes—domestic abuse, alcoholism, and suicide.
Press, New York, New York, 1997.                            Experience has shown that police officers and
     Police work has long been recognized as a         their families often are reluctant to seek counsel-
stressful profession. This stress and the resulting    ing, primarily for reasons of confidentiality and
problems or challenges it causes not only affect       the stigma associated with asking for help.
police officers and their co-workers but their         Moreover, officers who feel unable to problem-
families, as well. The author of I Love a Cop:         solve and remain in control of their own lives
What Police Families Need to Know draws upon           often feel diminished and inadequate. In the last
her experience as a police psychologist to explain     chapter in this section, the author discusses these
some of the common stress-producing experi-            concerns and lets police families know when they
ences police officers face as they progress            should seek professional help and the various
through their careers. From organizational factors     types available.
and traumatic incidents to emotional issues and             The chapters in part 3 address the special
special circumstances, the author discusses a          concerns of female, minority, and gay officers, as
wide range of concerns. She uses real-life ex-         well as police couples. Part 4, the book’s final
amples to illustrate her points and provides an        chapter, provides an ending to each of the real-life
exhaustive number of tips from both experts and        stories the author begins in earlier chapters. At
officers on the street to help police families cope    the end of the book, the author provides an
with these aspects of police work and mitigate         extensive reference list and a compilation of
their negative effects.                                resources available, including organizations,
     Most police practitioners know the various        books, and videos.
stages and corresponding behaviors that officers            I Love a Cop is a comprehensive, easily
can experience during their careers, from the          understood source of valuable information. The
probationary period to the honeymoon period to         difficulty comes in disseminating this information
disillusionment and, finally, burnout. In part 1,      to the people who need and could benefit from
the author describes these phases, letting police      it—police administrators, officers, and their
families know what to expect at each stage, and        families. This could be accomplished through
provides tips for dealing with each one. Addi-         various methods, including orientation programs
tional chapters in this section deal with the other    for officers and their families, in-service and roll-
realities of police work: long hours, shift work,      call training, stress management programs, career
unpredictability, public scrutiny, organizational      counseling sessions, and retirement planning
stress, and injuries.                                  seminars. I Love a Cop provides such worthwhile
     In part 2, the author addresses the various       information that police administrators should
types of traumatic events that can occur, includ-      seriously consider making it required reading for
ing police-involved shootings, line-of-duty deaths     promotional examinations.
and injuries, and the like, as well as their effects     Reviewed by Captain Linda S. Forst (ret.), Ed.D.
on officers and their families. One chapter                                               Adjunct Instructor
focuses specifically on helping children through                   Palm Beach Community College South
traumatic incidents. Also in this section, the                                         Boca Raton, Florida




                                                                                                 April 1998 / 9
Continuing Education
Expanding Opportunities for Officers
By DOMENICK VARRICCHIO, M.A., Ed.S., C.P.M.
                                                                                                 Photo © KL Morrison




A        s one of the byproducts of
         the policing subculture,
         many law enforcement ad-
ministrators become conditioned to
                                      continuing education is a winning
                                      proposition for all parties in-
                                      volved—the department, the of-
                                      ficer, and the community.
                                                                            and address a wide range of issues
                                                                            that impact crime problems in a
                                                                            community, continuing education
                                                                            helps enhance the problem-solving
looking at situations from a “zero-        Although law enforcement as a    skills necessary for officers to
sum” perspective. That is, in order   profession may have been slow to      operate successfully in this envi-
for one party to win, another party   recognize the full value of educa-    ronment. In agencies across the
must lose.                            tion as a complement to specific      country, revised mission state-
    While this model might apply      job-related training, an increasing   ments mandate skills far beyond
to apprehension or arrest situa-      number of administrators now view     the rudimentary mechanics of uni-
tions, it should not characterize a   it as an important component of a     formed patrol. At the same time,
department’s approach to profes-      complete transition to community-     a broader approach toward en-
sional development for its offi-      based policing. As officers move to   hanced professionalism involves
cers. In fact, a solid emphasis on    interact with citizens in new ways    higher educational levels, coupled




10 / FBI Law Enforcement Bulletin
with increased interpersonal, tech-
nical, and managerial skills.
     One of the challenges that con-
fronts progressive police managers
is how to make educational oppor-
tunities accessible to officers. In the
                                             “    ...a solid emphasis
                                                      on continuing
                                                      education is a
                                                         winning
late 1970s, the Port Authority of                  proposition for all
New York and New Jersey Public                    parties involved....
Safety Department was among the



                                                                                   ”
first law enforcement agencies in
the country to develop an off-cam-
pus continuing education program
in conjunction with a local univer-
                                                        Lieutenant Varricchio serves with the Port Authority of New York and
sity. Today, the program continues                         New Jersey Public Safety Department in Staten Island, New York.
to expand and serves as a model for
the type of constructive partnership
that can exist between law enforce-
ment and institutions of higher           this type of security with a steady         correlation between classroom
learning.                                 income, excellent fringe benefits,          theory and the reality of the
     The growing program is a re-         and—like the military—early re-             streets—calling into question the
flection of the evolving emphasis         tirement eligibility after 20 to 25         value of a college education as it
on education within the law en-           years of service or at age 55, de-          relates to police work. Still others
forcement profession. During the          pending on the jurisdiction.                fear that college-educated officers
past three decades, education levels           Amid the race riots and                will quickly tire of the irregular
have risen steadily in the nation’s       social protests of the 1960s, the           hours, constant pressures, and rela-
police agencies. To attract and re-       President’s Commission on Law               tive low pay of policing and move
tain the types of individuals needed      Enforcement and Administration of           on to greener pastures more readily
to fulfill the challenging commu-         Justice called for all police officers      than their counterparts without
nity-based mandates of the 21st           to possess college degrees.1 Since          degrees.
century, law enforcement agencies         this call was issued in 1967, law               Although these concerns
should not focus only on higher           enforcement agencies and civil ser-         should not be dismissed lightly, the
educational levels for recruits but       vice commissions in a growing               experiences of departments across
also should work to increase educa-       number of communities have raised           the country have shown that the ad-
tional opportunities available to all     educational requirements from the           vantages of increased education
officers on the force.                    traditional high school diploma to          levels in policing generally far out-
                                          2- or 4-year degrees with a major in        weigh the potential disadvantages.
A Call for Higher Learning                criminal justice or a related field.        A firm educational foundation not
    The vast majority of police can-           Inevitably, this trend has met         only enhances officers’ general
didates who entered the profession        with a host of proponents and               knowledge, but it also helps
from the end of World War II              detractors. Many critics believe            strengthen the problem-solving
through the mid-1970s were mili-          that certain criminal justice pro-          skills that have become integral
tary veterans in their early 20s, with    grams are merely extensions of ba-          to contemporary policing. As the
high school or equivalency diplo-         sic recruit training, rather than sub-      importance of education in policing
mas, seeking job security in a semi-      stantial disciplines relating to            has grown, an increasing number
skilled, blue-collar environment.         pertinent sociological and psycho-          of departments have instituted
Police and fire departments offered       logical issues. Others challenge the        policies mandating educational




                                                                                                                 April 1998 / 11
requirements for appointments,           yond the often-narrow confines of             Currently, graduate studies fa-
specific assignments, and promo-         an occupation. They also realize         cilities are located in six counties in
tions, particularly to senior manage-    that police retirees with higher edu-    New Jersey. Students may attend
ment positions.                          cation have sacrificed time, effort,     classes at any of the sites and often
                                         and expense to achieve their goals.      do so in order to accommodate their
Enhancing Prospects                      Although many universities accept        academic requirements as they near
     Clearly, the move toward            and award undergraduate, and in          the program’s completion.
higher education levels benefits in-     some cases, graduate credit for cer-          The graduate program offers a
dividual officers as it benefits their   tain recognized police training          concentration of courses in the
departments. Officers who obtain         courses, it generally has been left to   science of administration and su-
degrees, either before joining a de-     individual officers to balance rotat-    pervision and human resources
partment or while serving in an          ing shifts, job stress, family respon-   training and development. Addi-
agency, enhance their potential          sibilities, and other forces to pursue   tional courses are offered in ethics
value in the job market consider-        the majority of those degree credits.    for the helping professions, psycho-
ably. An officer’s employment                                                     logical issues and implications, and
prospects become an important is-




                                          “
                                                                                  directed research for administra-
sue as the officer approaches retire-                                             tors. In addition to a fully accred-
ment age.2 Most second career jobs                                                ited 36-credit masters degree pro-
of any merit require college educa-             ...continuing                     gram, the college offers a certificate
tion in addition to an individual’s           education helps                     program for students who success-
experience in police service. A re-              enhance the                      fully complete 12 credits, either
sume must be broad-based to attract           problem-solving                     in human resources training and
the attention of prospective em-            skills necessary for                  development or leadership and
ployers, all of whom are aware of            officers to operate                  management.
the pension entitlement available to                                                   Among its distinctive features,
officers after they separate from an           successfully....                   the program allows law enforce-




                                                                       ”
agency. Higher education degrees                                                  ment personnel to attend classes in
often become the clincher, or at                                                  close proximity to where they live
least the tie-breaker, when retirees                                              and work, which reduces overhead
interview for positions in the job       Port Authority Program                   expenditures for the institution and
market.                                       In 1977, the Port Authority of      enables the agency to negotiate
     Basic recruit, in-service, and      New York and New Jersey Public           lower tuition rates for its members.
other specialized training officers      Safety Department was among the          The Port Authority Police receive a
receive cannot compete with a col-       first law enforcement agencies in        40 percent scholarship from Seton
lege degree from an accredited in-       the country to offer an off-campus       Hall University and additional fi-
stitution. Prospective employers         police graduate studies program in       nancial support through the de-
outside law enforcement generally        conjunction with the New Jersey          partment’s tuition assistance pro-
view police training as instruction      State Police and the College of Edu-     gram. Personnel who qualify may
in job-related concepts, whereas         cation and Human Services of Se-         receive up to 80 percent reimburse-
they view higher education as fo-        ton Hall University. Since its found-    ment for tuition costs. This benefit,
cusing on a deeper understanding         ing by a former police chaplain 20       coupled with the scholarship, helps
and discussion of concepts from a        years ago, the program has awarded       make the program affordable. Of-
more historical, theoretical, and        graduate degrees to hundreds of law      ficers may secure additional finan-
philosophical level.                     enforcement officers from the Port       cial assistance through federal or
     Interviewers perceive the edu-      Authority, as well as personnel          university loans, and military veter-
cated job candidate as one who can       from other federal, state, county,       ans can apply tuition benefits to the
converse on a variety of topics be-      and municipal agencies.                  program.



12 / FBI Law Enforcement Bulletin
     Academically, the program is
designed to strengthen students’
professional knowledge and skills
and enhance their capacity for lead-
ership in a wide spectrum of
environments. It is staffed by full-
time faculty from Seton Hall and
qualified active and retired law en-
forcement officers, who serve as
adjunct professors. The adjunct fac-
ulty rotates among the various off-
campus sites, providing instructors
an opportunity to expand teaching
skills and experience the various
disciplines offered at each location.
     Course requirements also are
tailored to meet changing needs in
criminal justice. During the past
several years, courses in leadership,    past years in academic qualifica-        accommodate higher education pro-
ethics, finance, policy, administra-     tions for police chiefs: Of those sur-   grams for officers.5
tion, statistics, and a number of        veyed, nearly 50 percent held                 As the Police Graduate Studies
other pertinent subjects have been       bachelor’s degrees and 21 percent        Program model demonstrates, an
introduced into the graduate cur-        held graduate degrees.3 In the years     important component of programs
riculum. Students take these classes     since that study, growing numbers        of this type is close cooperation be-
in addition to the mandatory foun-       of college-educated officers have        tween the senior management staff
dation courses.                          assumed leadership roles in law en-      of the law enforcement agency and
                                         forcement agencies. Thirty years af-     the learning institution. In January
Developing a Program                     ter the President’s Commission,          1997, the program expanded to
    Selling the concept of a police      higher education levels have at last     offer a distinct on-site graduate pro-
undergraduate, graduate, or certifi-     become a hallmark for executive-         gram for the Port Authority Police.
cate program may be easier than it       level offices in agencies across the     Nearly 100 officers are currently
once was. Until recently, upper-         country.4                                enrolled in this on-site program.
level management positions in                 The logical extension of this
agencies were inundated with ad-         move toward higher education lev-        Results
ministrators who knew little about       els among the executive ranks is to          For the past 20 years, Police
administration and generally             expand the emphasis on education         Graduate Studies Program alumni
frowned on higher education as a         throughout the rank structure of law     have distinguished themselves in
means to enhance police perfor-          enforcement agencies. To this end,       their respective agencies, using
mance and management.                    departments should explore ways to       their education to enhance their
    Today, the story is different,       make educational opportunities not       abilities and performance. Many
and the composition of the upper-        only available but also convenient       have gone on to enjoy productive
level administrative ranks in police     to officers. Although more than half     postretirement careers. Several
agencies across the country reflects     of all police agencies currently offer   have become public safety directors
the quiet revolution that has taken      educational pay incentives or tu-        for both public sector agencies and
place. A large-scale study in Illinois   ition assistance programs to offi-       private organizations. Some have
conducted during the mid-1980s in-       cers, only a small fraction have poli-   become associate professors at Se-
dicated a substantial increase from      cies in place to more directly           ton Hall and other institutions of




                                                                                                         April 1998 / 13
higher learning. Still others have       slowly toward increasing educa-
become chiefs of police in sur-          tional levels in the policing profes-                   Wanted:
rounding communities.                    sion. Despite repeated calls to raise                 Photographs
    The success and popularity           the education levels of police offi-
among officers of the Police Gradu-      cers, significant practical ob-
ate Studies Program can be attrib-       stacles—as well as philosophical
uted to several important factors.       ones—have impeded progress in
  • The program focuses on areas         this area. Now that the philosophi-
    of study viewed as relevant          cal obstacles have gradually dimin-
    and practical to law enforce-        ished, progressive law enforcement
    ment officers who have an            administrators must work to ad-
    interest in the supervisory and      dress the remaining practical barri-
    managerial aspects of police         ers to enhancing educational oppor-
    work
  • Classes are offered at several
                                         tunities for officers. By working
                                         closely with institutions of higher
                                                                                            T      he Bulletin staff is
                                                                                                   always on the lookout
                                                                                            for dynamic, law enforce-
                                         learning, agencies can develop de-
    off-campus sites, making the                                                            ment-related photos for
                                         gree and certificate programs that
    program convenient for                                                                  possible publication in the
                                         are relevant, convenient, and eco-
    officers                                                                                magazine. We are interested
                                         nomically viable for officers. By
  • The Port Authority arranged a                                                           in photos that visually depict
                                         combining these factors with a
    group scholarship price                                                                 the many aspects of the law
                                         work environment that encourages
    structure and provided tuition                                                          enforcement profession and
                                         higher learning, agencies can de-
    incentives, making the pro-                                                             illustrate the various tasks
                                         velop a program that helps officers
    gram economically viable for                                                            law enforcement personnel
                                         prepare for the postretirement job
    officers.                                                                               perform.
                                         market as it enhances their value to
                                                                                                 We can use either black-
Further, officers understand that at-    their agencies and their communi-
                                                                                            and-white glossy or color
taining a graduate degree enhances       ties today.
                                                                                            prints or slides, although we
their value to their current agency as
                                                                                            prefer prints (5x7 or 8x10).
well as improving their value in the     Endnotes
                                                                                            Appropriate credit will be
job market.                                  1
                                               Edward A. Thibault, Lawrence M. Lynch,
                                                                                            given to contributing photog-
    Agencies that wish to increase       and R. Bruce McBride, Proactive Police
                                         Management, 3rd. ed. (Englewood Cliffs, New        raphers when their work
their education levels can adapt the     Jersey: Prentice Hall, 1995), 263-264.             appears in the magazine. We
basic principles of programs such as         2
                                               See William Rehm, “Retirement: A New         suggest that you send dupli-
the one developed between the Port       Chapter, Not the End of the Story,” FBI Law
                                                                                            cate, not original, prints as
Authority and Seton Hall Univer-         Enforcement Bulletin, September 1996, 6.
                                             3
                                               Keith I. Chandler, “The Importance of        we do not accept responsibil-
sity.6 Whether agencies develop
graduate, undergraduate, or certifi-
                                         Education in Police Chief Selection,” Police       ity for prints that may be
                                         Chief, January 1984, 28.                           damaged or lost. Send your
cate programs, the basic tenets of           4
                                               David L. Carter, Allen D. Sapp, and Darrel
relevance, convenience, and eco-         W. Stephens, “The State of Police Education:       photographs to:
                                         Policy Direction for the 21st Century,”
nomic viability will encourage of-       (Washington, DC: Police Executive Research             Brian Parnell, Art
ficer interest and involvement.          Forum, 1989), 59-65.                                   Director, FBI Law
                                             5
Conclusion                                   6
                                               Ibid.                                            Enforcement Bulletin,
                                               For more information about the Police
    In the 80 years since police         Graduate Studies Program, contact the author at
                                                                                                FBI Academy, Madison
visionary August Vollmer intro-          the Port Authority of New York and New                 Building 209, Quantico,
duced college-educated officers          Jersey, Port Authority Police, Goethals Bridge         VA 22135.
                                         Administration Building, Staten Island, New
into the Berkeley, California, Police    York 10303.
Department, agencies have moved


  14 / FBI Law Enforcement Bulletin
                                                                            Police Practice
  Transitions
  Responding to the Needs                                   controlling behavior, whether intentional or not,
                                                            victims can view the officer’s behavior as no different
  of Domestic Violence Victims                              than that of the offender. Some victims withdraw
  By Cheryl Rucinski                                        under these circumstances; others become highly
                                                            emotional. No one’s needs are served in a discourse
                                                            of this nature. The department does not develop
                                                            sufficient information to prosecute the offender. The
                                                            victim feels further victimized and becomes less
                                                            likely to report future incidents of violence. When
                                                            attitude problems become a barrier to the effective
                                                            delivery of services to the victim, the cycle of vio-
                                                            lence continues.
                                                            MAKING THE TRANSITION
                                                                 To address these concerns, the Cheektowaga
                                                            Police Department entered into a joint endeavor with
                                                            Haven House, the local battered women’s shelter, and
                                        Photo © Don Ennis
                                                            the National Conference, a human relations organiza-
                                                            tion dedicated to recognizing diversity and combating
                                                            prejudice. Because of its dual roles of moving the


O         ver the years, various crimes have demanded
          law enforcement attention. Drugs, violent
crime, and domestic violence all have pulled the focus
                                                            department to a new way of responding to domestic
                                                            violence and helping victims transcend their abusers,
                                                            the project was christened Transitions. Its objectives
                                                            included:
of police departments, law makers, and society alike.          • Dispelling invalid myths about victims of
In many cases, the law enforcement response to these             domestic violence that officers may harbor
types of crimes has changed.
                                                               • Increasing the interpersonal and communication
     Just as many police departments have done, the
                                                                 skills of responding officers
Cheektowaga, New York, Police Department identi-
fied domestic violence as a priority. The department           • Reducing bias and discrimination by officers
developed a proarrest policy and provided extensive               toward victims
training to its 125-officer force. Yet, 10 years later, a      • Increasing officers’ ability to recognize the
significant number of officers misunderstood the                 violent human dynamics in domestic scenarios
department’s domestic violence initiatives. In fact, the
                                                               • Developing data identifying areas for growth and
department seemed to have developed a culture that
                                                                  improvement.
remained unresponsive to the needs of the victims and
families of domestic violence. Discovering this                  In light of these objectives, the partners decided
through surveys, training evaluations, and verbal           to focus the majority of the training on addressing
feedback from the officers, the department immedi-          attitude issues and the misconceptions held by the
ately set out to improve the officers’ understanding,       officers because these seemed to be the root cause of
attitudes, and behavior.                                    some of the communication problems between
                                                            officers and domestic violence victims. Training was
MISUNDERSTANDING THE                                        offered to all of the department’s officers, emergency
NATURE OF DOMESTIC VIOLENCE                                 dispatchers, and civilian personnel, as well as to
     In a home fractured by domestic violence, offend-      police officers from other local agencies. In all, 300
ers seek power and control over their victims. Thus,        public safety employees attended the Transitions
when an officer exhibits biased or hostile attitudes or     conference.




                                                                                                      April 1998 / 15
DESIGNING THE PROGRAM                                      male officers. Offenders may blame their victims, try
     The project director designed the initial frame-      to get officers to identify with them, lie to the offi-
work for the 2-day program; however, all members of cers, and/or make promises they do not keep, for
the police department, both sworn and unsworn, as          example, returning to the house after the officers
well as the community partners, selected the training      leave. Rather than empathize or identify with offend-
topics and scenarios by responding to a written            ers, both male and female officers need to see through
survey. The survey listed a number of domestic             the offenders’ manipulation techniques and instead
violence-related topics—such as interviewing tech-         focus on what actually occurred and who was at fault.
niques, officer safety, and the signs of domestic               When discussing interviewing techniques, the
violence—from which the respondents could choose.          presenter stressed the impact that an officer’s words
The top issues then provided the curriculum for the        and actions can have on both offenders and victims.
program.                                                   Many officers said they feel pressed for time on calls
     Next, a core group of 15                                                   and cannot stay and “play social
representatives of the depart-                                                  worker.” To answer these officers,
ment—including police officers,                                                 the presenter suggested specific
detectives, captains, lieutenants,
sergeants, civilian clerks, and
public safety dispatchers—met
with the presenters and discussed
                                         “ Rather than empathize
                                                 or identify with
                                            offenders, both male
                                                                                words and phrases that could have
                                                                                an immediate impact on victims.
                                                                                For example, reminding the victim
                                                                                that hitting someone is a crime,
the format and content of the             and female officers need              explaining the cycle of violence
training. The ideas for three                 to see through the                and how it repeats itself, and
vignettes evolved from this group         offenders’ manipulation               emphasizing that the victim was
based on the members’ percep-                      techniques.                  not at fault can help to empower
tions of difficult domestic sce-                                                the victim to seek help.
narios. Five officers volunteered
to develop the plot, content, and
dialogue of the vignettes with the
“Theater for Change,” a troupe of professional actors,
                                                                   ”                 Officers also learned three
                                                                                types of offender profiles: the
                                                                                family-only abuser, the generalized
                                                           aggressor, and the emotionally volatile offender.1
writers, and directors who address difficult issues by     Each of these offenders comes from a different family
performing plays, improvisations, and workshops.           background, demonstrates a variety of attitudes and
Officers attended rehearsals to critique the actions       behaviors, and exhibits a varying degree of violence.
and dialogue of the actors for authenticity. The core      Family-only offenders, for example, usually are
group then reassembled to review the vignettes prior       violent only at home, whereas generalized aggressors
to the debut before the department.                        are just that—generally violent both in and outside
                                                           the home.
CONDUCTING THE PROGRAM                                          In the afternoon, the Theater for Change debuted.
                                                           Three vignettes each depicted a different scenario,
Day One                                                    and each featured a different offender profile. Two of
     A family counselor from a local counseling            the three included children. In each vignette, as in real
agency, who works primarily with domestic violence         life, officers needed to cut through the surface issues
offenders and facilitates a battered women’s group,        to get to the heart of the situation.
presented the morning program on the first day. It              The first vignette portrayed an emotionally
covered a number of topics, from why women stay in         volatile abuser and his wife, who were mutually
abusive relationships and how violence affects             combative. It challenged officers to determine who
children to offender profiling and interviewing            the primary aggressor was. To do so, officers needed
techniques. An important part of the program centered to defuse the anger of the combatants to obtain the
on how offenders manipulate the police, especially         information they needed to make a decision.



16 / FBI Law Enforcement Bulletin
                                     A Typology of Men Who Batter

  Family-Only Abuser                Generalized Aggressor                 Emotionally Volatile Offender

  Violent only at home              Generally violent both in            Sometimes violent outside the
                                    and outside the home                 home
  Least likely to have              Most likely to have been             Somewhat likely to have been
  been abused as a child            abused                               abused
  Least severe violence             Most severe violence                 Midway between other two types
  Lowest level of                   Moderate level of psychological      Highest level of psychological
  psychological abuse               abuse                                abuse
  Suppresses feelings               Reports some feelings of anger,      High levels of anger, depression, and
                                    depression, and jealousy             jealousy (more suicide attempts)
  More liberal attitude             Most rigid attitude                  Rigid attitude
  about sex roles
  Satisfied with marriage/          Some satisfaction/some               Least satisfaction/most conflict
  low conflict                      conflict
  Some alcohol use associated       Alcohol use usually associated       Alcohol use seldom associated with
  with violent acts                 with violent acts                    violent acts
  Some chance of prior              Some chance of prior                 Most likely to have had prior
  counseling                        counseling                           counseling
                                   Source: Daniel G. Saunders, Ph.D., A Typology of Men Who Batter, 1992, handout.


     The second short play depicted a reluctant,           from Haven House facilitated this portion of the
passive victim and a family-only abuser. In this case,     program. The officers practiced interviewing tech-
the victim felt helpless to resolve the situation, and     niques and employed different approaches to obtain
her husband, the type of abuser who usually remains a      information from the victims. They also questioned
pillar of the community, rationally explained away his     offenders to hear their justification for their behavior,
behavior. His calm and friendly demeanor easily            and by interviewing the children, the officers saw the
could have won over responding officers, who needed        effect of violence on their lives.
to look past his facade while patiently addressing the         This built-in interactive component proved the
victim’s concerns.                                         key to the session’s success. Officers challenged one
     The third scenario illustrated a violation of a       another and exchanged many useful strategies and
protection order, even though the victim “let” the         ideas on protocol and interviewing techniques.
offender, a generalized aggressor, back into the           Because group size was limited to 20-30 people,
residence. This vignette illustrated that officers         everyone had a chance to participate in the
should resist blaming the victim. Rather, offenders        discussions.
who manipulate victims to gain entry into the resi-
dence have violated the protection order and should        Day Two
be taken into custody.                                         On the second day, staff from the National
     After performing each vignette, the actors stayed     Conference presented a cultural diversity program
in character and interacted with the officers. A trainer   designed to provide strategies for identifying and



                                                                                                       April 1998 / 17
resolving cross-cultural differences in an atmosphere    interaction with domestic violence partners and took
of open discussion, problem solving, and understand-     away concrete ideas on how to improve their response
ing. In this way, officers would work to overcome the to both offenders and victims. Many officers made
myths and stereotypes that hinder creative problem       suggestions for follow-up programs. Moreover, in the
solving. After leading a general discussion on preju-    months following the Transitions training, domestic
dice and discrimination, the staff focused on sexism,    violence victims praised the department’s responsive-
which plays a major role in domestic violence cases,     ness to their needs. Finally, formal recognition of the
as well as in the police response to them.               program came with a 1997 Excellence in Community
     Domestic violence offenders,                                             Policing award from the National
for example, often expect their                                               League of Cities.
partners to fulfill traditional sex
roles. They seek power and                                                    CONCLUSION
control in the relationship, and if
they do not get it, they batter.
Thus, sexist attitudes, combined
with additional offender traits,
                                         “        When [officer]
                                               attitude problems
                                              become a barrier to
                                                                                   Domestic violence is a
                                                                              complicated issue, and respond-
                                                                              ing officers no longer can afford
                                                                              to give offenders time to cool off
can create an atmosphere ripe                the effective delivery           or tell couples to kiss and make
for abuse. In addition, police                 of services to the             up. Both offenders and victims
officers who believe these same               victim, the cycle of            may need a variety of interven-
stereotypes may treat victims                 violence continues.             tions to help them break the cycle
poorly. Finally, sexist attitudes                                             of violence. The police represent
may create a rift between male
and female members of the
department.
     During this session, the officers broke into
                                                                    ”         their first step on the road to
                                                                              recovery. Yet, myths and miscon-
                                                                              ceptions can block that route,
                                                         as the Cheektowaga Police Department discovered by
groups; many of them included at least one female        paying attention to its officers’ attitudes and
officer and/or a victim advocate, who eventually         behaviors.
would ride with officers to domestic violence calls.          Using nontraditional training methods—such as
These advocates helped officers see the victim’s point interactive vignettes and open-forum discussions on
of view. In addition, by the end of the discussion,      sensitive topics—collaborating with unique commu-
many officers had realized where their personal biases nity partners, and presenting a police training program
lay and felt better able to speak freely on a variety of designed by police officers made Transitions different
sensitive topics.                                        from other programs officers had attended in the past.
     During the afternoon presentation, the assistant    These characteristics helped the department achieve
district attorney assigned to the domestic violence      its goal of developing a positive organizational
bureau of the district attorney’s office covered         culture with corresponding values, attitudes, and
changes in the law in New York. Some recent changes behaviors. In doing so, the Cheektowaga Police
include mandatory arrest for both felony and misde-      Department helped to ensure an effective and appro-
meanor charges and new felony violations of protec-      priate response to the domestic violence needs of the
tion orders.                                             community.
SEEING RESULTS                                           Endnote
     Following the training, officers completed a           Daniel G. Saunders, Ph.D., A Typology of Men Who Batter, 1992,
                                                         handout.
written survey to provide feedback. Several officers
stated that it was the best training session they had    Lieutenant Rucinski serves with the Cheektowaga, New
attended in their careers. They learned how their        York, Police Department, and is the Transitions program
prejudices, words, and actions had affected their        director.




18 / FBI Law Enforcement Bulletin
              Community Prosecution
              Community Policing’s Legal Partner
              By SUSAN P. WEINSTEIN, J.D.




A         lthough various reports in-      crimes vigorously and explore cre-     philosophy called community
          dicate that violent crime        ative solutions to addressing crime.   prosecution.1
          rates have been decreasing,           To increase public safety and
the American public continues to           enhance the quality of life in their   THE CONCEPT
feel threatened by crime. Whether          districts, prosecutors have begun to       Community prosecution is a
real or imagined, this dread per-          transcend their traditional roles of   grassroots approach to law enforce-
vades the lives of many people in          reacting to crime as case proces-      ment involving both traditional and
today’s society. When residents            sors. As crime and violence            nontraditional prosecutorial initia-
live in fear in their own neighbor-        threaten communities and case-         tives. It invites citizens to partici-
hoods, the criminal justice system         loads overwhelm the criminal jus-      pate in establishing crime-fighting
has failed. While all disciplines          tice system, some prosecutors have     priorities and collaborating with
working in the system bear the re-         begun experimenting with creative      prosecutors. By clearly defining an
sponsibility for promoting public          approaches to fighting, as well as     area in which to implement commu-
safety, it is the prosecutor’s first and   preventing, crime in their jurisdic-   nity-based programs, committing
foremost obligation. In today’s cli-       tions. Accordingly, district attor-    resources for the long term, and be-
mate, prosecutors must prosecute           neys have embraced an innovative       ing sensitive to residents’ concerns,




                                                                                                        April 1998 / 19
prosecutors can target key problems          of a successful program, discussed    prevent crime. Rather than merely
identified by residents.                     the issues that prosecutors should    waiting for a crime to occur, pros-
     Community prosecution con-              consider when planning and imple-     ecutors work with the target com-
trasts sharply with the traditional          menting a program, and determined     munity to prevent crime.
method of setting prosecutorial pri-         the relationship of community pros-
orities by assessing the seriousness         ecution to community policing.        Target Area
of the crime, the weight of the evi-              While perspectives varied             The prosecutor must choose a
dence, and the threat that defen-            among jurisdictions, the groups       site and focus all efforts into that
dants pose to the public or to them-         agreed that community prosecu-        area. The area may encompass one
selves. Community prosecution                tion focuses on targeted areas and    city block, a housing development,
often addresses less serious crimes,         involves a long-term, proactive       or a police district.2
such as prostitution or loitering, that      partnership among the prosecutor’s
threaten to deteriorate the quality of       office, law enforcement, the com-     Partnerships
life in communities.                         munity, and public and private or-         The hallmark of community
     In September 1993 and Febru-            ganizations in order to solve prob-   prosecution is forming partner-
ary 1995, the American Prosecutors           lems, improve public safety, and      ships. In a position to affect policy,
Research Institute (APRI) con-               enhance the quality of life in the    prosecutors, law enforcement lead-
vened focus groups to discuss the            community.                            ers, and public and private sector
concept of community prosecution.                 Building on this definition,     officials must work together to
Both groups consisted of prosecu-            the focus groups identified nine      thoughtfully consider the com-
tors actively involved in community          key components that embody the        munity’s public safety and quality-
prosecution programs and other               general concept of community          of-life concerns. As a group, they
allied professionals, including              prosecution.                          fashion an effective, coordinated
law enforcement officials, with                                                    approach and ensure the successful
expertise on the subject. The                Proactive Approach                    use of all legal tools.
groups defined community pros-                    A community prosecution               Law enforcement and the dis-
ecution, identified key components           strategy must enforce the law and     trict attorney’s office combine to
                                                                                   form a crucial partnership. Police
                                                                                   officers and prosecutors have dis-
                                                                                   tinct roles but possess similar mis-


                                     “
                                                                                   sions: securing public safety. Tradi-
                                             In today’s climate,                   tionally, both enforce laws, leaving
                                             prosecutors must                      crime prevention to others. How-
                                              prosecute crimes                     ever, the mission of both commu-
                                                                                   nity prosecution and community
                                               vigorously and                      policing is crime prevention. Con-
                                               explore creative                    sequently, community prosecution
                                                 solutions to                      has derived some of its basic
                                             addressing crime.                     elements from community polic-
                                                                                   ing. Strong cooperation between



     Formerly with the American Prosecutors Research Institute in Alexandria,
     Virginia, Ms. Weinstein now serves as the program attorney for the National
     Association of Drug Court Professionals in Alexandria.
                                                                             ”     police departments and prosecu-
                                                                                   tors’ offices has proven to enhance
                                                                                   community prosecution programs
                                                                                   immensely.
                                                                                        For example, the Local
                                                                                   Intensive Narcotics Enforcement
                                                                                   (LINE) Program in Philadelphia,




20 / FBI Law Enforcement Bulletin
Pennsylvania, is a high-impact en-        Through problem solving, prosecu-       prosecution concept and demon-
forcement campaign focusing in-           tors learn which issues most trouble    strate this firm commitment in the
tense prosecutorial efforts within a      citizens so they can address these      long run. Only in this way can com-
single district. Assistant district at-   priorities accordingly. Often, these    munity prosecution establish cred-
torneys often ride with police, ac-       priorities include public safety and    ibility and acceptance among com-
companying them to visit commu-           quality-of-life issues.                 munity residents and achieve its
nity groups and assisting with                                                    objectives.
investigations, as appropriate.




                                          “
Through these collaborative efforts,                                              Commitment
prosecutors obtain firsthand knowl-                                                    As with all new programs, sup-
edge of every arrest, which helps                Community                        port from the prosecutor, as well as
bring offenders swiftly to justice.          prosecution often                    from other partnership policy mak-
    Numerous other community                  addresses less                      ers, is critical to success. Only when
prosecution programs exist in               serious crimes...that                 the district attorney demonstrates a
which police and prosecutors work                                                 steadfast commitment to the effort
                                                 threaten to                      and clearly communicates this
closely as partners, producing posi-
tive results in combating crime.               deteriorate the                    dedication to middle managers,
Some include efforts in Austin,               quality of life in                  will those on the front lines be
Texas; Kansas City, Missouri; In-              communities.                       convinced that their efforts are
dianapolis, Indiana; Cambridge,                                                   priorities.




                                                                        ”
Massachusetts; Rockville, Mary-
land; New York, New York; Bos-                                                    Continuous Evaluation
ton, Massachusetts; and Milwau-                                                       The district attorney must pro-
kee, Wisconsin.                           Varied Methods                          vide for the collection of data at all
                                               In conjunction with the other      stages of the community prosecu-
Community Input                           entities involved in the partnership,   tion. Careful and continuous evalu-
     Successful community pros-           prosecutors incorporate varied          ation of a program is important for
ecution also depends on the direct        strategies, such as civil sanctions     monitoring the delivery of services,
interaction between the prosecutor        and nuisance abatement, to strictly     identifying program strengths and
and the community, as well as the         enforce the law. These varied en-       weaknesses, and providing evi-
incorporation of the community’s          forcement strategies can eliminate      dence of the effectiveness of the
input into the courtroom. Prosecu-        problems without actually pros-         program strategy.
tors may keep residents apprised of       ecuting defendants. For example,
pending felony and misdemeanor            responding to residents’ complaints     IMPLEMENTATION
charges against offenders in their        about drug dealing in a restaurant or       In theory, a community pros-
neighborhoods. At the same time,          bar, health department inspectors       ecution program is easy to imple-
residents may provide information         may enter the establishment and         ment. In practice, however, the tran-
that strengthens the evidence             search for health code violations.      sition may prove difficult and
against a specific defendant (e.g.,       Upon discovering a sufficient num-      tedious. Prosecutors may face nu-
community impact statements).3            ber of violations, the inspectors       merous obstacles from inside and
                                          can close the business, effectively     outside their organizations.
Communication                             shutting down the illegal drug              One potential roadblock in-
     Maintaining open communica-          operation.                              volves the residents of the target
tion with residents of the target                                                 area. Initially, they may be suspi-
area and officials from other enti-       Long-term Strategies                    cious of outsiders whom they per-
ties in the partnership remains cru-         Prosecutors must dedicate            ceive as insincere in their attempts
cial to the success of the program.       themselves to the community             to “help” them. Often, residents see




                                                                                                         April 1998 / 21
prosecutors as enemies in business       instituting a community prosecu-        office in January 1990, the borough
suits who send friends and loved         tion program involves eight steps:      of Brooklyn was besieged by virtu-
ones to jail. Prosecutors must              • Selecting a target area            ally insurmountable problems, such
build trust carefully with these                                                 as burgeoning drug use, increasing
                                            • Conducting a needs
individuals.                                                                     street violence, crumbling commu-
                                              assessment
     Another possible hurdle is that                                             nity institutions, and a deteriorating
the culture of district attorneys’ of-      • Identifying resources and          infrastructure. Aware that the na-
fices does not always lend itself to          garnering the support and          tional trend toward community po-
this type of work. Many attorneys             commitment of policy makers        licing helped to reduce crime, the
choose careers in prosecution to en-        • Identifying funding sources        DA developed a community pros-
force laws and lock up “bad guys.”                                               ecution program to complement the
                                            • Organizing program players
Often, they view community in-                                                   New York Police Department’s ex-
                                              and internal staff
volvement as “touchy-feely” or the                                               isting community policing program.
job of social workers. Prosecutorial        • Developing the community                Based on data depicting the
leaders must select staff members             prosecution program plan           borough’s demographic composi-
who remain open to the new con-             • Implementing the program           tion and on analyses of crime
cept and possess unique skills to act                                            trends, the DA divided pros-
                                            • Evaluating the program.
as community problem solvers. Not                                                ecutorial responsibility for the 23




                                          “
every assistant district attorney will                                           police precincts in his district into 5
be suited for the new endeavor, and                                              zones, assigning approximately 25
the prosecutor must recognize this.                                              assistant prosecutors to each zone.
     Turf battles represent the              Law enforcement                     Cases originating in a particular
third obstacle, as they are inevitable        and the district                   zone are prosecuted by the assigned
in any partnership. Boundaries                attorney’s office                  assistants and adjudicated in courts
erected by and between various en-           combine to form a                   in the zone,6 although the assistants
tities must be torn down. For ex-                                                remain based in the district
ample, the historically conflict-
                                            crucial partnership.                 attorney’s office. Within each zone,




                                                                      ”
prone relationship between police                                                special programs exist to target
and prosecutors must give way to a                                               problems specified by residents,
team approach.                                                                   and the DA has expanded and al-
     Indeed, collaborative efforts       Of course, as with any program in       tered the program on an as-needed
work best when each member of the        its infancy, flexibility and open-      basis.
partnership understands that             mindedness are essential to its over-
achieving the goals of public safety                                             Multnomah County, Oregon
                                         all success.
and crime prevention requires a                                                       In 1990, the Multnomah
team effort. Policy makers must          SUCCESS STORIES                         County district attorney began ex-
cast aside stereotypes and acknowl-          A number of jurisdictions, large    ploring ways in which the services
edge the abilities and limitations of    and small, rural and metropolitan,      of his office could augment
their organizations. Open commu-         throughout the nation have commu-       Portland’s community policing ef-
nication among all of the partners is    nity prosecution programs in place.     fort. He formed a coalition of re-
essential.                               The following examples represent        sources, both public and private, to
     Because of these and other          only two from an extensive list.        fund a community prosecution pro-
challenges, prosecutors planning                                                 gram. Members of his staff, to-
to make the transition to com-           Brooklyn, New York                      gether with residents of various
munity prosecution should follow            When the Kings County, New           neighborhoods in the county, devel-
a specific approach. In general,         York, district attorney (DA) took       oped several ways of improving life




22 / FBI Law Enforcement Bulletin
in targeted areas. They call it the        to solving public safety and quality-             Prosecutors from several juris-
Neighborhood DA Program.                   of-life problems in innovative               dictions report a surge in commu-
     As part of the program, the DA        ways.                                        nity involvement, ranging from
assigns one deputy district attorney                                                    help with graffiti removal to crime
to each of six geographic areas            EVALUATION                                   tips from residents and increased
within Multnomah County. The                   No formal or in-depth research eyewitness participation. More-
deputy DAs work from offices in            evaluations have concluded defini- over, residents write to thank com-
their assigned areas, making them          tively that community prosecution munity prosecutors for closing
readily accessible to residents. At        actually increases public safety and down drug houses and removing
the same time, the deputy can con-         enhances the quality of life in many crack vials from their streets. Some
duct a host of activities, from teach-     communities. However, prosecu- residents have personally thanked
ing citizens about restraining orders      tors’ observations indicate that the prosecutors who removed the pros-
to reviewing criminal cases that           concept works.                               titution problem from their neigh-
originate in the district.                                                Photo © Mark Ide   borhoods.7 Others say that they
     The District Public Safety                                                              no longer awaken to find bro-
Committee works in conjunc-                                                                  ken car windows each morn-
tion with the Neighborhood DA                                                                ing.8 Many residents have told
Program to provide a forum for                                                               community prosecutors that for
collaboration and information                                                                the first time, they feel the
dissemination among residents,                                                               criminal justice system is re-
business owners, and the Neigh-                                                              sponsive to their needs. Thanks
borhood DA. The committee                                                                    to community prosecution,
meets monthly to identify qual-                                                              these residents have become
ity-of-life issues and crime                                                                 part of the solution to their
problems that are important to                                                               problems.9
the area and devises strategies
to address these problems.                                                                       THE FUTURE
     For example, the Neighbor-                                                                      As the concept receives
hood DA distributes “trouble-                                                                    wider acceptance, the future for
shooter cards” at each commit-                     Assistant district attorneys are asked        community-based justice pro-
                                                   to gather evidence at a crime scene.
tee meeting and on each block                                                                    grams rests in the hands of
throughout the neighborhood.                                                                     those who join the partnership.
These cards, which contain ques-                One jurisdiction targeted street            Ideally, community policing and
tions on drug-related crimes and           robberies by asking assistant dis-               community prosecution will merge
public safety issues, enable the           trict attorneys to respond quickly to            into a community justice move-
deputy DA to obtain timely and             crime scenes and precincts to ques-              ment. This movement will grow
accurate information on commun-            tion witnesses and gather evidence.              from the synergy created by law en-
ity observations. The prosecutor           During that 5-month period, street               forcement, prosecutors, and other
compiles the information, distrib-         robberies in the target area de-                 allied professionals working to-
utes it to district police officers, and   creased 8 percent.5 As a result of an            gether to help community members
uses it to develop crime prevention        effort directed at drug trafficking              gain control over their neighbor-
strategies.                                operations on residential properties,            hoods and, ultimately, their lives.
     The Neighborhood DA Pro-              one prosecutor’s office closed three                  When they believe that policy
gram is focused and long term. It          drug houses on one street and                    makers truly care about their
demonstrates the community-based           almost 700 properties in a 3-year                communities, residents willingly
commitment of the district attorney        period.6                                         risk involvement. As community




                                                                                                                   April 1998 / 23
prosecution and community polic-        processors, forming community-                    U.S. Department of Justice. APRI has
                                                                                          documented various innovative prevention
ing efforts achieve success, resi-      based partnerships, expanding their
                                                                                          programs led by prosecutors and has published
dents will feel safer and enjoy a       presence in otherwise-forgotten                   numerous resources on the subject, including:
better quality of life. Accordingly,    neighborhoods, and helping resi-                  Beyond Convictions: Prosecutors as Commu-
they likely will continue such ef-      dents take charge of their lives.                 nity Leaders in the War on Drugs (Alexandria,
                                                                                          VA: APRI, 1993); Community Prosecution: A
forts in the future.                         Initiated in many jurisdictions
                                                                                          Guide for Prosecutors, (Alexandria, VA: APRI,
     The community justice move-        as a response to escalating crime                 1995); and The Community Prosecution
ment is a trend for the future. Work-   problems, community prosecution                   Implementation Manual, (Alexandria, VA:
ing as partners to secure public        has become increasingly popular as                APRI, 1995).
                                                                                              2
                                                                                                Prosecutors use various criteria when
safety and enhance the quality of       a means to secure public safety and               choosing a target area. For examples, see the
life, prosecutors, law enforcement      enhance the quality of life in ways               American Prosecutors Research Institute’s
agencies, and public and private or-    that traditional prosecution could                Community Prosecution Implementation
ganizations can tap a tremendous        not. Like community policing, com-                Manual, 1995.
                                                                                              3
                                                                                                Community impact statements, or victim
resource—citizens. True partner-        munity prosecution is a philosophy                impact statements, are presented as evidence in
ships also eliminate duplicate ef-      whose time has come.                              court to corroborate offenders’ crimes and
forts and provide maximum ben-                                                            increase the severity of their sentences. There
efits to all.                           Endnotes
                                                                                          are many other ways in which prosecutors and
                                                                                          residents can help each other in and out of the
                                            1
                                              Since 1990, the American Prosecutors        courtroom. For more information, see the
CONCLUSION                              Research Institute (APRI), the research and       Community Prosecution Implementation
    In this era of community in-        technical assistance affiliate of the National    Manual.
volvement, prosecutors are seeking      District Attorneys Association, has followed          4
                                                                                                Approximately 85 percent of all cases are
                                        this prosecutorial trend closely. APRI’s          adjudicated in this manner. Special prosecutors,
innovative ways to fight and pre-       community prosecution work is supported by        assigned to specialized units, handle the
vent crime in their jurisdictions.      Cooperative Agreement numbers 94-DD-CX-           remaining 15 percent—which include sex
More and more prosecutors are           0086 and 96-DD-BX-0055 from the Bureau of         crimes, organized crime, and high-profile
augmenting their roles as case          Justice Assistance, Office of Justice Programs,   cases—regardless of the zone in which the
                                                                                          crimes occurred.
                                                                                              5
                                                                                                Honorable Charles Hynes, District
                                                                                          Attorney, Kings County, New York, interview
                                                                                          by APRI staff, July 1992; and Jay Cohen,
                                                                                          Deputy District Attorney, Kings County, New
                         Nine Components of                                               York, interview by author, September 1995.
                                                                                              6
                                                                                                Willis L. Toney, “Drug Abatement
                        Community Prosecution
                                                                                          Response Team (DART) Program,” DART
                                                                                          Newsletter, Kansas City, MO, June 1993.
          • A proactive approach        • Varied enforcement                                  7
                                                                                                Honorable E. Michael McCann, Milwau-
          • A clearly defined target      methods                                         kee County District Attorney, interview by
                                                                                          author, September 1995.
            area                        • Long-term commitment                                8
                                                                                                Albert Toczydlowski, LINE Project
                                                                                          Director, Office of the District Attorney,
          • Community-based             • Support from policy                             Philadelphia, Pennsylvania, interview by APRI
            partnerships                  makers                                          staff, March 1992; and “Taking Their Block
          • Community input                                                               Back,” The Philadelphia Daily News,
                                        • Continuous evaluation                           September 25, 1992.
          • Open communication                                                                9
                                                                                                Wayne Pearson, assistant district attorney,
                                                                                          Office of the Multnomah County District
                                                                                          Attorney, August 1993, presentation; and
                                                                                          Melinda Haag, deputy prosecuting attorney,
                                                                                          Office of the Marion County District Attorney,
                                                                                          interview by author, July 1995.




24 / FBI Law Enforcement Bulletin
                                               Legal Digest



Curtilage
The Expectation of Privacy in the Yard
By EDWARD M. HENDRIE, J.D.




T       he English common law               America’s founding fathers                The area that is outside the cur-
        tradition of protecting the    embodied this tradition in the            tilage of the home, which courts re-
        home against government        Fourth Amendment, which recog-            fer to as an open field, is not pro-
intrusions existed long before this    nizes the right of the people to be       tected by the Fourth Amendment.4
great republic was founded. Will-      secure in their houses from unrea-        “Open field” is a term of art; for an
iam Pitt’s 1763 address before the     sonable searches and seizures. The        area to be considered an open field,
House of Commons in England            U.S. Supreme Court has interpreted        it need not be in the open nor a
perhaps best expresses the special     the Fourth Amendment as provid-           field.5
status of the home. “The poorest       ing the greatest degree of protection          The U.S. Supreme Court has
man may in his cottage bid defi-       against government encroachment           ruled that “...in the case of open
ance to all the forces of the Crown.   to the home. For Fourth Amend-            fields, the general rights of property
It may be frail; its roof may shake;   ment purposes, that area immedi-          protected by the common law of
the wind may blow through it; the      ately surrounding the home, the           trespass have little or no relevance
storm may enter; but the King of       curtilage, has customarily been           to the applicability of the Fourth
England cannot enter—all his force     viewed as part of the home.2 This         Amendment.”6 A property owner
dares not cross the threshold of the   article explores the limits of the pro-   cannot add to the constitutional pro-
ruined tenement.”1                     tection afforded the curtilage.3          tection of an open field or change its



                                                                                                        April 1998 / 25
                                      “     The area that is
                                         outside the curtilage
                                          of the home, which
                                         courts refer to as an
                                                                                        apparent. In United States v.
                                                                                        Dunn,13 the U.S. Supreme Court set
                                                                                        forth four factors to be considered
                                                                                        when deciding whether an area is
                                                                                        within the curtilage of the home: 1)
                                                                                        what is the proximity of the area to
                                           open field, is not                           the home, 2) is the area within the
                                           protected by the                             same enclosure as the home, 3)
                                         Fourth Amendment.                              what is the nature of the use to
                                                                                        which the area is put, and 4) what


    Special Agent Hendrie, Drug Enforcement
    Administration, is a legal instructor at the FBI Academy.
                                                                          ”             steps have been taken by the resi-
                                                                                        dent to protect the area from the
                                                                                        view of passersby?
                                                                                             In Dunn, several DEA special
                                                                                        agents and officers from the Hous-
                                                                                        ton Police Department crossed a pe-
                                                                                        rimeter fence that surrounded two
                                                                                        barns and a house. They then
character to that of curtilage by              prosecutions; such limitations, to       walked onto the defendant’s prop-
posting “No Trespassing” signs at              the extent that they differ from the     erty and smelled the odor of precur-
its boundaries.7 The scope of the              federal standard, would not be rel-      sor chemicals used in the manufac-
protection given an area does not              evant in federal prosecutions.           ture of illegal drugs coming from
depend on whether the owner has                                                         one of the barns. Based on that and
attempted to conceal some private              Curtilage Defined                        other information, they obtained a
conduct.8 Rather, the courts inquire                Because curtilage is given          search warrant and found sufficient
into whether the government has in-            Fourth Amendment protection, and         evidence in the barn to convict the
truded upon the owner’s subjective             in all federal and most state cases an   defendant of manufacturing illegal
and personal expectation of privacy            open field is not, it is important to    drugs.
and whether that expectation is one            know where the curtilage ends and             The Dunn Court ruled that the
that society accepts as reasonable.9           the open field begins. Once the          barn was not within the curtilage of
     If an officer trespasses onto             boundaries of the curtilage are set,     the house. Located on a 198-acre
another’s curtilage, that trespass             the area that is an open field also      ranch, the barn was 60 yards from
would be a search if it was in an area         will be defined because an open          the house and 50 yards from a sec-
of the curtilage where the owner has           field is simply that area that lies      ond fence surrounding the house.
a reasonable expectation of privacy.           outside the curtilage. The focus of      There was no indication that the
If, however, an officer trespasses             the inquiry, therefore, should be on     barn was being used for those inti-
onto an open field, that will not be           the curtilage.                           mate activities normally associated
considered a search in a federal                    The U.S. Supreme Court has          with the home, and the defendant
case, because an open field is not             described the curtilage as “the area     had not taken sufficient steps to
protected by the Fourth Amend-                 to which extends the intimate activ-     protect the barn area from those
ment.10 A few states, however, have            ity associated with the ‘sanctity of a   standing in the open field. Finally,
chosen to disregard that federal rule          man’s home and the privacies of          the fences were of the type to corral
as a matter of state law and have              life.’”12 The boundaries of the curti-   cattle and not those normally used
granted protection from police tres-           lage for most homes are readily ap-      to block the view of the public.14
pass in areas outside the curtilage.11         parent. However, not every home               Because the barn was in an
State limitations on police conduct            is surrounded by property where          open field, the officers did not
would apply only to that state’s               the private boundaries are readily       violate the Fourth Amendment



26 / FBI Law Enforcement Bulletin
when they walked onto the de-           Commercial Property                      business if it is not considered a
fendant’s property to get to the            The U.S. Supreme Court has           curtilage? In Illinois v. Janis,22 the
barn.15 The inside of the barn, how-    recognized that “[t]he businessman,      Supreme Court of Illinois ruled that
ever, was protected by the Fourth       like the occupant of a residence,        although the outdoor area surround-
Amendment.16 Based on the facts in      has a constitutional right to go         ing a commercial establishment
this case, it was necessary for the     about his business free from             does not constitute a curtilage, the
officers to obtain a search warrant     unreasonable official entries upon       business’ expectation of privacy in
before they could lawfully enter the    his private commercial property.”19      that area will be protected by the
barn.                                   While this statement of general          Fourth Amendment if the business
     Under Dunn, in order for prop-     principle applies to the interior of     takes affirmative steps to bar the
erty to be considered curtilage it      a business, the courts have not          public from that area.23
must be appurtenant to a residential    given the same protection to the              Similarly, in United States v.
building. If there is no residence on                                            Hall,24 the U.S. Court of Appeals




                                         “
the property, then the property will                                             for the Eleventh Circuit ruled that
be considered an open field. For ex-                                             the property surrounding a business
ample, in Foley v. Kentucky,17 the                                               is not curtilage and that property
police, acting on a tip and without a
                                           ...most courts have                   will be given Fourth Amendment
warrant, dug up a large septic tank             limited the                      protection only if the business takes
that was buried on the defendant’s          application of the                   affirmative steps to bar the public
father’s property. In the tank they        curtilage principles                  from those premises.25 In Hall, a
found the bodies of four murder vic-         to homes and do                     U.S. Customs agent drove 40 yards
tims. The Supreme Court of Ken-                not recognize                     down a private road to a dumpster
tucky upheld the warrantless un-                                                 located near a company parking
earthing of the septic tank and
                                                commercial                       area. The agent reached into the
affirmed the defendant’s murder                 curtilages.                      dumpster and seized a bag contain-




                                                                     ”
conviction and death sentence. Al-                                               ing shredded documents that estab-
though the septic tank was located                                               lished probable cause for a subse-
close to a neighbor’s cabin, the                                                 quently obtained search warrant for
property on which the tank was          land surrounding a business as they      that business. The defendant was
found did not have a dwelling. The      traditionally have given to the curti-   ultimately indicted and convicted
court ruled, therefore, that the tank   lage of a home. Implicit in the Dunn     for selling restricted arms to Iran.
was in an open field and not pro-       decision is the conclusion that a        He appealed his conviction, claim-
tected by the Fourth Amendment.         barn used in a commercial enter-         ing that the initial search of the
     In Foley, the property was in a    prise has no curtilage of its own.20     dumpster was an unlawful intrusion
sparsely populated rural area, but at   The property around a business is        into his commercial curtilage.
least one court has held that a         not like the area around a home; it           The court determined that, al-
fenced vacant lot in a densely popu-    does not harbor those intimate ac-       though the road that the agent trav-
lated urban area will also be consid-   tivities associated with the privacies   eled on was private, there were no
ered an open field. In O’Neal v.        of life and the sanctity of the home.    signs or barricades that would indi-
Florida,18 the police opened a gate     As a matter of federal constitutional    cate that the public was prohibited
and walked onto a fenced vacant lot     law, most courts have limited the        from entering the area. The road
and discovered a stolen vehicle and     application of the curtilage prin-       appeared to be a public road, and
other stolen property. The court        ciples to homes and do not recog-        the agent believed it to be so at the
ruled that the fenced lot was an        nize commercial curtilages.21            time. Because the company had
open field because it did not have a         What protection, if any, is         taken no affirmative steps to keep
residence on it.                        given to the area surrounding a          the public out, the court ruled that




                                                                                                        April 1998 / 27
the company’s subjective expecta-          honor. If the police are traveling in a   permission and stood on his tiptoes
tion of privacy in the contents of the     public thoroughfare or in navigable       to look over a 6-foot privacy fence
trash found on the property was not        airspace, they are not required to        that surrounded the defendant’s
an expectation that society would          shield their eyes when passing by a       property. The Supreme Court of
accept as objectively reasonable.          home or yard. There is no expecta-        Florida ruled that the officer’s con-
                                           tion of privacy where an area of the      duct did not violate the Constitution
Peering into the Curtilage                 curtilage is open to public view.         because the defendant did not have
     The Fourth Amendment only                 The Ciraolo decision makes it         a reasonable expectation that some-
provides protection for police con-        clear that the sighting of evidence       one would not try to peek over his
duct that is a search or seizure. If the   on the curtilage need not be inad-        fence.
police peer into the curtilage of the      vertent. Courts will allow observa-
home, it does not necessarily indi-        tions of the curtilage even if signifi-   Physical Entry
cate that the police have conducted        cant steps have been taken in order       onto the Curtilage
a search. A search under the Fourth                                                      Simply because an area is open
Amendment is defined as an intru-                                                    to observation, however, does not




                                            “
sion by the government into an area                                                  mean that it is open to physical in-
in which a person has a reasonable                                                   trusion. Although individuals may
expectation of privacy.26 It is well             There is no                         not have an expectation that the
established that “[w]hat a person           expectation of privacy                   public will not look at their prop-
knowingly exposes to the public,                                                     erty, they may have a reasonable
even in his own home or office, is
                                             where an area of the                    expectation that the public will not
not a subject of Fourth Amendment            curtilage is open to                    walk or otherwise physically in-
protection.”27 Police conduct will               public view.                        trude onto their property. Any po-




                                                                          ”
not be considered a search, even                                                     lice search without a warrant in an
though they look into the curtilage                                                  area on the curtilage where a person
of the home, if that area of the curti-                                              has a reasonable expectation of pri-
lage is exposed to public view.            to make the observations. For in-         vacy is presumed unreasonable.
     For example, in California v.         stance, in Wisconsin v. Kennedy,29        That presumption of unreasonable-
Ciraolo,28 the police received an          the Court of Appeals of Wisconsin         ness, however, is rebuttable. A war-
anonymous tip that marijuana was           held that a county welfare fraud in-      rantless intrusion onto premises is
growing in Ciraolo’s yard. The po-         vestigator did not violate the            constitutionally permissible if the
lice were unable to see into the yard,     defendant’s Fourth Amendment              resident gives consent or exigent
because it was surrounded by a 6-          rights when he used binoculars to         circumstances exist, such as: 1) an
foot outer privacy fence and a 10-         see into the curtilage from a posi-       officer’s reasonable belief that evi-
foot inner privacy fence. They de-         tion on the defendant’s property          dence may be imminently de-
cided to fly an airplane over the          that was outside the curtilage.           stroyed;31 2) hot pursuit of a suspect
suspect’s home at an altitude of                What if, instead of trespassing      whom officers reasonably believe is
1,000 feet and take pictures of the        onto an open field, an officer tres-      in the area to be searched;32 3) a
marijuana growing within the curti-        passes on a neighbor’s curtilage in       search where there is an immediate
lage. The U.S. Supreme Court ruled         order to peer into the defendant’s        need to protect or preserve life;33 or
that, because any private aircraft         property? In Sarantopoulos v.             4) a protective sweep of premises
could have flown over the house,           Florida,30 an officer saw several         where officers reasonably suspect
Ciraolo’s expectation that the mari-       marijuana plants growing in the           there is a threat to their safety.34
juana would not be observed from           defendant’s backyard. In order to              In Massachusetts v. Straw,35 the
the air was unreasonable and there-        see the marijuana, the officer went       police went to the defendant’s resi-
fore was not an expectation of             onto the yard of the defendant’s          dence to arrest him on the authority
privacy that society was prepared to       neighbor without the neighbor’s           of a warrant for assault with intent




 28 / FBI Law Enforcement Bulletin
to commit murder. As the officers        viction for trafficking in cocaine           door, implicitly invites the public to
spoke with the defendant’s mother        was reversed.                                walk onto the front yard, at least
at the front door, the defendant             In Straw, the defendant at-              insofar as the walkway allows them
threw a briefcase out a second-          tempted to hide evidence on his              to get to the front door. In United
story window. An officer, who had        own fenced curtilage. In United              States v. Tobin,38 the full bench of
taken a position in the back of the      States v. Morgan,37 however, the             the U.S. Court of Appeals for the
house, saw the briefcase fly out of      suspect threw a bag containing two           Eleventh Circuit stated that “there
the window and land 6 to 10 feet         handguns and $6,000 in cash from a           is no rule of private or public con-
from the house in the fenced back-       recent robbery next to the back              duct which makes it illegal per se,
yard. The backyard was adjacent to       porch in an acquaintance’s yard as           or a condemned invasion of the
the sidewalk but separated from it       he attempted to run from the police.         person’s right of privacy, for any-
by a wrought iron fence. The officer     The yard abutted an open field. The          one openly and peaceably, at high
entered the backyard, opened the         U.S. Court of Appeals for the Tenth          noon, to walk up the steps and
briefcase, and found over 200            Circuit found that by throwing the           knock on the front door of any
grams of cocaine inside it.              bag into the yard, the defendant,            man’s ‘castle’ with the honest intent
     In Straw, the Supreme Judicial                                Photo © Mark Ide   of asking questions of the occupant
Court of Massachusetts ruled that                                                     thereof—whether the questioner be
the defendant’s intentions were not                                                   a pollster, a salesman or an officer
to abandon the briefcase but to pre-                                                  of the law.”39
vent the police from finding it so                                                         In Jenkins v. Georgia,40 the
that he could retrieve it later.36 The                                                court held that “[w]here a police
court felt that the defendant had the                                                 officer enters upon private property
same reasonable expectation of pri-                                                   only to the extent of knocking on
vacy in his fenced backyard as he                                                     outer doors, the Fourth Amendment
had inside his house. Even though                                                     is not violated....After all, such an
the public could see the backyard                                                     officer is merely taking the same
from the adjacent sidewalk, people                                                    route as would any guest or other
had no lawful physical access to the                                                  caller.”41
backyard. The court, however,                                                              Driveways, like walkways, are
stated that it was lawful for the                                                     commonly used by neighbors, mail
officer to enter the yard without a      had abandoned the property. The              carriers, salespeople, and other visi-
search warrant and seize the brief-      court stated that the bag was plainly        tors as an access route to the house.
case because there was an emer-          visible to the public, and his ability       The courts typically allow police
gency. It was reasonable to believe      to recover the bag depended en-              officers the same right to enter onto
that the defendant’s family might        tirely upon the absence of inquisi-          a driveway as any other member of
recover the briefcase and hide or        tive passersby.                              the public.42 In North Dakota v.
destroy its contents.                                                                 Winkler,43 the police were investi-
     The court, though, ultimately       Areas Within the Curtilage that              gating a hit and run collision. They
held that the officer unlawfully         are Implicitly Open to the Public            drove 200 feet up the defendant’s
opened the briefcase because                  Not every physical intrusion            driveway and shined their head-
once he had it in his custody the        onto a curtilage will be viewed as a         lights into his open garage. The
emergency had passed. The court          search. Generally, the courts will           Supreme Court of North Dakota
felt that the officer should have        not give the same level of protection        found that, although the police
obtained a warrant before open-          to a home’s front yard as they would         drove onto the defendant’s curti-
ing it. The evidence found in the        give to a home’s fenced backyard.            lage, they did not intrude into a pri-
briefcase, therefore, was sup-           The design of many front yards,              vate area of the curtilage. The drive-
pressed and the defendant’s con-         with walkways leading to the front           way was implicitly open to the



                                                                                                             April 1998 / 29
public and anyone could have            would not be a Fourth Amendment         that scavenging animals are not fa-
driven up the driveway just as the      search if the police retrieved the      miliar with the curtilage rule of the
officers had done. That is not to say   trash from the curbside. Would it be    Fourth Amendment and ordinarily
that homeowners must take affirma-      proper for the police to enter onto     cannot be relied upon to abide by it.
tive steps to keep the public out of    the curtilage to retrieve trash that    “Urban raccoons are particularly
the curtilage before they will be af-   has not been put at the curb for        skillful in ignoring the Fourth
forded protection of that area under    collection? The Greenwood Court         Amendment even when the garbage
the Fourth Amendment.44 If an area      did not address that issue, so we       is secreted in a can with a lid. The
of the curtilage is not implicitly      must look to the state courts and       attractive contents likely will soon
open to the public then the resident    lower federal courts to answer that     be neatly spread out by ingenious
will have a protected right to pri-     question.                               and industrious raccoons for all to
vacy in that area.                                                              see.”48




                                         “
     In New Hampshire v. Pink-                                                       A resident’s expectation of pri-
ham, 45 an officer drove to the                                                 vacy in areas on the curtilage in-
defendant’s home after a citizen         The court felt that the                creases the closer the area is to the
complained that the defendant may          defendant had the                    house or the garage. If the area is
have been driving drunk. The of-                                                not accessible to the public, then an
ficer got out of his police cruiser
                                           same reasonable                      intrusion by the police into that area
and walked onto the curtilage and       expectation of privacy                  will constitute a search under the
up to the defendant, who was sitting    in his fenced backyard                  Fourth Amendment. For example,
in his car. The car was parked in his     as he had inside his                  in United States v. Certain Real
driveway, within 10 to 15 feet of the            house.                         Property at 987 Fisher Road,49 the
house. The Supreme Court of New                                                 U.S. District Court for the Eastern




                                                                     ”
Hampshire ruled that, as a matter of                                            District of Michigan was faced with
state law, there was an implied invi-                                           an issue involving valet garbage
tation for any member of the public         In United States v. Hedrick,47      pick up. The sanitation workers in
to use the driveway as an access        the defendant kept his garbage in a     that city drove scooters into the
route to the house. The court noted     fixed area on his driveway 50 feet      yards to pick up the garbage and
that the view of the driveway from      from the house, 20 feet from an un-     then dump it into the larger truck
the road was not blocked by shrub-      attached garage, and 18 feet from       waiting on the street.
bery or the house. In addition, entry   the sidewalk. The U.S. Court of              In the Fisher Road decision, the
into the driveway was not prohib-       Appeals for the Seventh Circuit         court disapproved of a police of-
ited by a gate or “No Trespassing”      ruled that the police did not conduct   ficer portraying a sanitation worker
signs. The court concluded that it      a search when they went onto his        and driving a scooter into the back-
was not necessary for the officer to    property to retrieve the garbage on     yard of a residence to pick up the
obtain a search warrant before          the evening prior to the regularly      garbage bags from the back wall of
walking onto the driveway.              scheduled garbage collection. The       the house on the scheduled day for
                                        court held that the defendant had no    trash pickup. The court held that
Retrieving Trash                        reasonable expectation of privacy       closed trash bags in the backyard of
from the Curtilage                      in garbage left in that area, even      the curtilage are entitled to Fourth
    The U.S. Supreme Court, in          though it was on his curtilage, be-     Amendment protection from police
California v. Greenwood,46 ruled        cause there was no fence or other       intrusion until they either are taken
that a person does not have a rea-      barrier securing the area, and it was   to the curbside or removed from the
sonable expectation of privacy in       readily accessible to children, scav-   premises by the owner or trash col-
garbage that has been left at the       engers, snoops, or other members of     lector. Because the police in Fisher
curb for collection. Consequently, it   the public. Other courts have noted     Road did not have a warrant and




30 / FBI Law Enforcement Bulletin
there was no applicable exception
to the warrant requirement, the
evidence found in the trash was
suppressed.
    The court in Fisher Road fo-
cused on the fact that it was the
officer himself who intruded onto
the defendant’s property. In North
Carolina v. Hauser,50 a police of-
ficer, rather than going into the yard
himself, requested that a sanitation
worker pick up the trash from the
back of the defendant’s residence
on the appointed pickup day and
deliver it to the officer. The Su-
preme Court of North Carolina ap-
proved of that tactic because the         reasonable expectation of privacy is                   12
                                                                                                     Oliver, 466 U.S. at 180 (quoting Boyd v.
                                          presumed unreasonable and must                      United States, 116 U.S. 616 (1886)).
trash was collected from the curti-                                                               13
                                                                                                     480 U.S. 294, 301 (1987).
lage by the regular garbage collec-       be justified through one of the rec-                    14
                                                                                                     See also United States v. Depew, 8 F.3d
tor, in the usual manner, on the          ognized exceptions to the search                    1424 (9th Cir. 1993). In Depew, the U.S. Court
scheduled collection day.51               warrant requirement.                                of Appeals for the Ninth Circuit applied the
                                                                                              Dunn factors and determined that an area 50 to
                                                                                              60 feet from a house, within 6 feet of the
Conclusion                                Endnotes
                                                                                              entrance of the garage but outside a low picket
                                               1
                                                  The Oxford Dictionary of Quotations 379     fence that surrounded the house, was within the
     The area immediately sur-            (2d ed. 1953), quoted in United States v. Ross,     curtilage of the home. The court noted that the
rounding the home, known as the           456 U.S. 798, 822, n. 31 (1982).                    defendant was a practicing nudist who
curtilage, is protected under the              2
                                                 Oliver v. United States, 466 U.S. 170, 180   purchased the house because the yard was not
Fourth Amendment from unreason-           (1984).                                             visible from the road. An officer walked
                                               3
                                                 See also John Gales Sauls, “Curtilage, The   approximately 120 yards from the road up to
able government intrusions. If,           Fourth Amendment in the Garden,” FBI Law            the garage on a ruse that his car had broken
however, there is an area within the      Enforcement Bulletin, May 1990, 26-32, for a        down on the road. While standing on the
curtilage that is implicitly open to      comprehensive review of the pre-1990 cases          property the officer smelled the odor of
the public, such as a walkway to the      involving curtilage issues.                         marijuana, which was the basis for a subse-
                                               4
                                                 Hester v. United States, 265 U.S. 57, 59     quently obtained search warrant. The police
front door, then it would not be con-     (1924); Oliver v. United States, 466 U.S. 170       seized 1,000 marijuana plants, which the court
sidered a search if the police exer-      (1984); United States v. Mckeever, 5 F.3d 863,      then suppressed as the fruit of the initial illegal
cised the same freedom to walk on         867-68 (5th Cir. 1993).                             search. United States v. Jenkins, 124 F.3d 768
                                               5
the curtilage as is implicitly granted           Oliver, 466 U.S. at 180, n. 11.              (6th Cir. 1997) (area in backyard fenced on
                                               6
                                                 Id. at 183-84.                               three sides was within curtilage).
to the public. The courts will also            7
                                                 Id. at 182.                                      15
                                                                                                     Not all barns will be considered outside
protect the property surrounding a             8
                                                 Id. at 182.                                  the curtilage. The test under Dunn is a totality
business. Unlike the area around a             9
                                                 Id. at 182-83.                               of the circumstances test, a distinction in any
                                               10
home, however, owners of commer-                  Id. at 182-83.                              one of the operative facts could result in a
                                               11
                                                  E.g., New York v. Scott, 593 N.E.2d 1328,   different outcome. In Pennsylvania v. Rood,
cial property must take affirmative       1330 (N.Y. 1992); Montana v. Bullock 901            686 A.2d 442 (Pa. Commw. 1996), appeal
steps to keep the public out of an        P.2d 61, 75-76 (Mont. 1995) (the Supreme            denied, 699 A.2d 736 (Pa. 1997), for instance,
area in order to protect their consti-    Court of Montana interpreted the Montana            the barn was close to the house, although the
tutional privacy interest in that area.   State Constitution to mean that persons may         court’s opinion did not indicate the distance,
                                          have a reasonable expectation of privacy in         and the court ruled that it was within the
Any intrusion without a warrant           their areas of land that are beyond the curtilage   curtilage. See also United States v. Reilly, 76
onto the property around a home           if there are fences, “No Trespassing” signs, or     F.3d 1271, reh’g granted, aff’d on reh’g, 91
or business where a person has a          other indications that entry is forbidden).         F.3d 331 (2d Cir. 1996) (outcome of case not




                                                                                                                              April 1998 / 31
altered on rehearing) (cottage that was 375 feet    have the owner’s consent before conducting an        v. Hempele, 576 A.2d 793 (N.J. 1990);
from the house was within the curtilage of the      inspection of an area on the premises of a           Washington v. Boland, 800 P.2d 1112 (Wash.
house).                                             business that is not open to the public).            1990).
    16                                                  26                                                   47
       See also United States v. Santa Maria, 15           Katz v. United States, 389 U.S. 347                  922 F.2d 396 (7th Cir. 1991), cert.
F.3d 879, 882-83 (9th Cir. 1994).                   (1967).                                              denied, 502 U.S. 847 (1991). See also United
    17                                                  27
       953 S.W. 2d 924, 934 (Ky. 1997).                     Id. at 351.                                  States v. Shanks, 97 F.3d 977 (7th Cir. 1996),
    18                                                  28
       689 So. 2d 1135 (Fla. App. 4th Dist.                476 U.S. 207 (1986).                          cert. denied, 117 S. Ct. 1002 (1997).
                                                        29                                                   48
1997).                                                     535 N.W.2d 43 (Wis. App. 1995).                      United States v. Redmon, 117 F.3d 1036,
    19                                                  30
       See v. Seattle, 387 U.S. 541, 543 (1967).           629 So. 2d 121 (Fla. 1993).                   1038, n. 2 (7th Cir. 1997), vacated for hearing
    20                                                  31
       480 U.S. at 303-04.                                 Schmerber v. California, 384 U.S. 757         en banc, 122 F.3d 1081 (1997). In Redmon,
    21
       See Dow Chemical v. United States, 476       (1966), Ker v. California, 374 U.S. 23 (1963)        “[t]he defendant, Joseph Redmon, deposited his
U.S. 227, 236-39 (1986). In Dow, the U.S.           (plurality opinion).                                 trust and his cocaine accessories in his garbage
                                                        32
Supreme Court ruled that an industrial plant               Warden v. Hayden, 387 U.S. 294 (1967).        cans. That was a mistake. The police got to his
                                                        33
complex with numerous plant structures                     See Mincey v. Arizona, 437 U.S. 385,          garbage cans before the garbage collectors.”
covering an area of over 2,000 acres falls          392-93 (1978), citing Michigan v. Tyler, 436         Redmon sought to distinguish his case from the
somewhere between an open field and curtilage.      U.S. 499, 509-10 (1978). See also United             Greenwood decision by pointing out that his
The Dow Court ultimately ruled that, when           States v. Mayes, 670 F.2d 126 (9th Cir. 1982).       garbage cans were still on the curtilage of his
subjected to aerial surveillance, the land                                                               townhouse and were not left at the curb. The




                                                     “
surrounding the buildings was more comparable                                                            Redmon court stated that it appeared that the
to an open field than to the curtilage of a home.                                                        garbage cans were not within the curtilage of
But cf. United States v. Seidel, 794 F. Supp.                                                            the townhouse, but that even if they were on the
1098, 1104-05 (S.D. Fla. 1992) (the court ruled                 ...it was not                            curtilage, Redmon had no reasonable expecta-
that the Dunn factors are applicable to the
“commercial curtilage” of a small wholesale
                                                            necessary for the                            tion of privacy in that area. The cans were
                                                                                                         located on the driveway, immediately outside
nursery business); Pearl Meadow Mushroom                    officer to obtain a                          his attached two-car garage, which he shared
Farm Inc. v. Nelson, 723 F. Supp 432, 440
(N.D. Cal. 1989) (The court adapted the Dunn
                                                             search warrant                              with another townhouse. The only approach to
                                                                                                         his front door required that visitors walk up the
factors to apply to “commercial curtilage” in a             before walking on                            driveway to a walkway that ran along the side
civil action against Immigration and Naturaliza-              the driveway.                              of the garage. Walkways to and from a front
tion Service agents. The court, however, limited                                                         door, although on private property, are




                                                                                            ”
the Fourth Amendment protection to those areas                                                           generally regarded as open to the public. The
where steps had been taken to prevent public                                                             court pointed out that visitors to both Redmon’s
intrusion.).                                                                                             townhouse and his neighbor’s townhouse would
    22
       565 N.E.2d 633 (Ill. 1990).                     34
                                                           Maryland v. Buie, 494 U.S. 325 (1990).        use that driveway and that Redmon had no
    23
       See also Massachusetts v. Krisko Corp.,         35
                                                           665 N.E.2d 80 (Mass. 1996).                   control over visitors to his neighbor’s
653 N.E.2d 579 (Mass. 1995). In Krisko, the             36
                                                           Id. at 83. See also Smith v. Ohio, 494 U.S.   townhouse. Therefore, the area was open to the
owner of commercial property took affirmative       541, 543-44 (1990) (a suspect who throws a           public. A dissenting judge in Redmon argued
steps to bar the public from access to his trash    bag inside his car has not abandoned the bag).       that the trash cans were on the curtilage of
dumpster by installing gates at both ends of a          37
                                                           936 F.2d 1561 (10th Cir. 1991), cert.         Redmon’s home and that he had a reasonable
fenced alley adjacent to his business. He only      denied, 502 U.S. 1102 (1992).                        expectation of privacy in that area. The Redmon
opened the gates when the trash hauler arrived          38
                                                           923 F.2d 1506 (11th Cir.) (en banc), cert.    decision has since been vacated. The entire
to pick up the trash. The Supreme Court of          denied, 502 U.S. 907 (1991).                         bench of the United States Court of Appeals for
Massachusetts ruled that a state environmental          39
                                                           Id. at 1511 (quoting Davis v. United          the Seventh Circuit will review the case and
engineer conducted an unreasonable search           States, 327 F.2d 301, 303 (9th Cir. 1964)).          issue a superseding opinion. As of the date of
when, without a search warrant, she climbed             40
                                                           477 S.E.2d 911, 912 (Ga. App. 1996).          the drafting of this article, the superseding
into the dumpster and seized paint cans                 41
                                                           Id.                                           opinion had not yet been issued.
                                                                                                             49
containing hazardous waste.                             42
                                                           E.g., New Hampshire v. Pinkham, 679                  719 F. Supp. 1396 (E.D. Mich. 1989).
    24                                                                                                       50
       47 F.3d 1091 (11th Cir.), cert. denied,      A.2d 589, 591 (N.H. 1996); Maisano v                        464 S.E.2d 443 (N.C. 1995).
                                                                                                             51
116 S. Ct. 71 (1995).                               Welcher, 940 F.2d 499, 503 (9th Cir. 1991);                 See also Crocker v. Wyoming, 477 P.2d
    25
       Id. at 1097. See also Air Pollution          United States v. Smith, 783 F.2d 648, 650 (6th       122, 125 (Wyo. 1970); and United States v.
Variance Board of Colorado v. Western Alfalfa       Cir. 1986).                                          Bionich, 652 F.2d 743 (8th Cir.), cert. denied,
Corp., 416 U.S. 861, 865 (1974) (The Court              43
                                                           552 N.W.2d 347, 352 (N.D. 1996).              454 U.S. 975 (1981).
ruled that a Health Department field inspector          44
                                                           Washington v. Hoke, 866 P.2d 670, 675
who walked on business property did not                                                                  Law enforcement officers of other than
                                                    (Wash. 1994).                                        federal jurisdiction who are interested in
conduct a search. That finding was in part              45
                                                           679 A.2d 589 (N.H. 1996).                     this article should consult their legal
because he was on premises from which the               46
                                                           486 U.S. 35 (1988). The Greenwood             advisors. Some police procedures ruled
public had not been excluded.); See v. Seattle,     decision was not followed on state law               permissible under federal constitutional law
387 U.S. 541, 545-46 (1967) (the Court ruled        grounds in the following cases: Vermont v.           are of questionable legality under state law
that a fire inspector must obtain a warrant or      Morris, 680 A.2d 90 (Vt. 1996); New Jersey           or are not permitted at all.




32 / FBI Law Enforcement Bulletin
                                                                    The 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
       their exemplary service to the law enforcement profession.




                                   While patrolling a back country road,
                              Officer Sean Geagan of the Bucksport,
                              Maine, Police Department met an oncom-
                              ing vehicle traveling in excess of 80 mph.
                              Officer Geagan immediately turned
                              around to pursue the vehicle, but due to its
                              high speed, he never regained sight of it.
                              Shortly thereafter, Officer Geagan came
                              upon the scene of an automobile accident
                              which involved this same vehicle. The
   Officer Geagan             car, which had flipped upside down, was
                              on fire. The driver, contained by his
  seatbelt, was uninjured, but his arm
  was pinned under the overturned
  vehicle. Using the fire extinguisher
  from his police cruiser, Officer
  Geagan was able to keep the flames                                             Field Training Officer Curt
  and smoke away from the driver                                            McIvor of the Bellevue, Washington,
  until the fire department arrived.                                        Police Department was on patrol with
  Officer Geagan undoubtedly saved                                          a student officer in a residential
  the man’s life and kept him from                                          neighborhood. The pair stopped a
  sustaining serious injuries by                                            vehicle for a traffic violation directly
  protecting him from the fire while he                                     in front of a house in which a 7-week-
  was trapped inside the burning                                            old male infant had just stopped
  vehicle.                                                                  breathing. During his feeding, the
                                                                            infant had choked on food which
                                                    Officer McIvor          completely obstructed his airway
                                                    and his ability to breathe. The infant’s father spotted the
Nominations for the Bulletin Notes should be        officers in front of the house and ran outside to obtain their
based on either the rescue of one or more
citizens or arrest(s) made at unusual risk to an
                                                    assistance. Officer McIvor immediately entered the resi-
officer’s safety. Submissions should include a      dence and successfully cleared the blockage from the
short write-up (maximum of 250 words), a            baby’s airway while the child’s mother phoned 911. The
separate photograph of each nominee, and a
letter from the department’s ranking officer        infant promptly began breathing on his own. He was
endorsing the nomination. Submissions should        transported to a local hospital as a precaution where it was
be sent to the Editor, FBI Law Enforcement
Bulletin, FBI Academy, Madison Building,            determined that he had suffered no injury or ill effects from
Room 209, Quantico, VA 22135.                       the episode. The quick thinking and rapid response of
                                                    Officer McIvor prevented the infant from choking to death.
U.S. Department of Justice                        Periodical
Federal Bureau of Investigation                   Postage and Fees Paid
                                                  Federal Bureau of Investigation
935 Pennsylvania Avenue, N.W.                     ISSN 0014-5688
Washington, DC 20535-0001


Official Business
Penalty for Private Use $300




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