in this issue . . . Eliciting And Evaluating An Alibi   Understanding Disabilities-A Must for Law Enforcement   Handcuffing Residents Of A House During Execution Of A Search Warrant

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by John E. Reid and Associates

 One of the most efficient means to eliminate a possible suspect in a crime is if his alibi proves to be correct. This is only true, however, when the investigator is absolutely certain of the time of the offense and when there are independent witnesses to corroborate the alibi. Unfortunately, in many situations, an investigator must make an immediate decision following an interview whether or not to interrogate a suspect, without the benefit of being able to verify an alleged alibi.

There are a number of behavioral characteristics which tend to support or refute the validity of an alibi. To take advantage of these, the investigator must elicit an alibi in a manner which provides the most meaningful of information. Consider a home invasion where a jeweler was robbed by a man last Friday night at 7:30. The traditional interview question asked to elicit this suspect's alibi would be, "Where were you last Friday night at 7:30?" The suspect may respond, "I was shopping at K-Mart for a birthday present for my nephew." Follow-up questions may reveal that the suspect purchased a football, for which he paid $25.00 cash, but he did not keep his receipt. Furthermore, the suspect denies encountering anyone he knew during his shopping trip. Is this alibi true or false? Given this limited information it is impossible to tell. Suppose, however, that the suspect was asked the following question to elicit his alibi: "Tell me everything you did last Friday night from 6:00 until 9:00." This question offers the potential for much more meaningful information. Because it does not reveal the time of the crime (7:30), the innocent suspect's detail and recollections of his activities should be similar before and after the commission of the crime. The deceptive suspect, however, knows when he committed the crime and this guilty knowledge may influence his recounting of events. He may offer sketchy information prior to and after the commission of the crime, but very specific details at the time of the crime (a rehearsed alibi). On the other hand, the guilty suspect may tell the truth about his general activities before and after the crime, which includes a fair amount of detail, but he conveniently glosses over the details of his whereabouts at the time the crime was committed (an unprepared alibi). Some crimes involve incriminating activities before and after the actual commission of the crime. Under this circumstance, the guilty suspect must fabricate most of his account, where the entire account tends to be vague. Consider the following two responses to the question, "Tell me everything you did last Friday night between 6:00 and 9:00."

SUBJECT 1: "At 6:00 I had just arrived home from work and I took a shower because I knew I was going to go out for pizza. I had already arranged with a friend from work, Rick Johnson, to meet at the Pizza Hut on Sunset Ave. We were going to meet there at 8:00. Rick was bringing a date and I wanted to bring one too but I didn't get a chance during the day to call anyone. Around 6:30 I called Betsy King, a girl I dated in high school and occasionally go out with, but there was no answer so I ended up going alone. On Saturday my brother was having a birthday party for my nephew Paul and I hadn't yet gotten him a present. There is a K-Mart right across the street from the Pizza Hut so I left my apartment at around 7:00 and got to the K-Mart at maybe 7:15. I knew I was going to get him a football so I picked one out and then, to kill time, I looked at camping stoves and lanterns. Next month I'm going to go with some friends on a camping trip up North and I still need some basic equipment. At any rate, I only bought the football and that would have been around 7:45 or so. I went right from the K-Mart down the street to the Pizza Hut and arrived before Rick and Gloria. I ordered a beer while I waited for them and they arrived a little after 8:00. We ordered a pizza and a pitcher of beer and we were there until after 9:00. We left together and I didn't get home until about 9:30."

SUBJECT 2: "At 6:00 I was just hanging in my apartment and I needed to buy a present for my nephew's birthday so I went to the K-Mart on Sunset and bought him a football. At 7:30 I was inside K-Mart buying the football. I paid $25.00 cash for it in the express lane. Eventually, I left and went out for pizza at Pizza Hut. I think I was still at the Pizza Hut at 9:00 because I didn't get home that night until later."

In analyzing these two alibis, the first appears to be much more credible than the second. In addition to the details offered within the first statement, other indications of truthfulness include: 1. Specific information with respect to time, people's names and locations; 2. The account contains unnecessary information (thoughts, things that were not done); 3. The account follows the suspect's normal behavior, e.g., he has gone out with these friends for dinner in the past and often dines in at this Pizza Hut. On the other hand, the second alibi is sketchy except for the time period of the crime. It contains the following deceptive criteria:

1. Vague information with respect to time, people's names and locations;
2. The absence of unnecessary information — the account focuses on behaviors to connect one event to the other;
3. "Time-gap" phrases that indicate something is being left out of the account, e.g., "after a while", "eventually", "the next thing I knew";
4. The account may not represent the suspect's normal behavior, e.g., this is only the second time in 10 years that the suspect has eaten at this particular Pizza Hut — he almost always orders a pizza for delivery. A key in eliciting a meaningful alibi in this manner is to instruct the suspect to tell you everything that he did between two time periods (generally a couple of hours before and after the crime). A question such as, "Tell me what you did last Friday night," will often result in a general accounting of events from both the truthful and deceptive suspects.

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By David Whalen

Public service professionals encounter a high volume of situations whereby they come in contact with individuals with disabilities. This is especially true in law enforcement where situations can vary from high intensity to very confusing. Recent statistics indicate that 50%-80% of encounters by officers involve an individual with a disability. Furthermore, up to two-thirds of children in juvenile detention facilities have received special education services and at least 50% of incarcerated individuals have some form of disability. Discussions over the past several months with select local law enforcement personnel and the Criminal Justice department at Niagara University, suggested that appropriate disability education and training for officers is typically not provided to the extent necessary to adequately prepare officers for interactions with an individual with a disability.

However, disability awareness training (DAT) has been gradually working its way into the fabric of standard training protocols across a broad spectrum of the American workforce. For example, training has been provided to corporate America and Human Resource departments, public transportation, educators, and emergency responders. It some cases, like public transit and school districts, the absence of training mirrors the absence of training in law enforcement, although positions in these arenas often demand regular interaction with individuals with a disability. However, unlike employees in other private and public sectors, law enforcement officers are regularly required to make split-second decisions in extremely complicated situations where they do not have complete situational knowledge.  These split-second decisions are often open to public review via the media, and may result in unintended consequences, particularly in the absence of appropriate training. Where it challenges law enforcement beyond the aforementioned is in public perception, media exposure, and some of the dire results if the officer is not properly trained.

Understanding the disabilities that an officer is likely to encounter is imperative, but it can be extensive. Respecting the fact that all people are different, it would be important to understand characteristics typical of particular disabilities. In the same breath, it would help to clear up myths and misperceptions. However, each disability could be an article (or training) in and of themselves. Equipping officers with basic ‘need to know’ information is a start.

Understanding disabilities is a complicated process, but generally disabilities can be categorized into the following groups:

• sensory disabilities; visually impaired/blind and hearing impaired/deaf
   

• learning disabilities; challenges mainly with reading but with far reaching consequences if not properly addressed
   

• emotional disabilities; includes mental health
   

• developmental disabilities;  includes intellectual disabilities (mental retardation), cerebral palsy, and autism spectrum disorders
   

• physical disabilities; includes spinal cord injuries, muscular dystrophy, multiple sclerosis, and arthritis

DAT for law enforcement should begin with a basic presentation of the different disabilities and the typical characteristics of each disability.  In addition, DAT should include sensitivity training, as well as a series of strategies and appropriate responses that allow officers to do their job in a way that minimizes conflict, provides safety to both the officer and the citizen, and maximizing the officer’s ability to serve and protect. In recent months the following police-citizen encounters have appeared in the news:

-An officer in Florida dumped a paraplegic out of his wheelchair, not believing he had a disability. The paraplegic broke two ribs and the officer is looking at a third degree felony.

-Officers in Nevada pulled over a woman for drunk driving, arrested her, and took her to the psychiatric ward. She had cerebral palsy.

-Individuals on the autistic spectrum have died in custody mainly due to the pressure on the lungs resulting from officer restraint strategies. Importantly, to date no officer has died during an interaction with an individual with autism spectrum disorder.

There is also concern within the field of law enforcement itself, as the incidence of emotional trauma leading to post-traumatic stress disorder is one of the highest for any profession nationwide. Partners as well as supervisors need to be aware of signs and be ready to address needs and support their fellow officers. Stigma and labeling often block an individual from asking for and receiving the help they need. However, with the proper supports many officers can lead everyday lives and continue to be productive members of the force.

So what does an officer need to know for an encounter where the individual’s disability does not call for standard practice? While every individual is different, understanding the disability should be a critical piece of information in reaching a reasonable solution. DAT can never tell an officer how to deal with a particular situation, but DAT should help officers in situations that may call for a different approach. DAT can provide training in proper etiquette in communicating with or assisting an individual with a disability. DAT can provide training in techniques to identify disability indicators, which may help to defuse a situation. Finally, DAT can facilitate recognition of the victimization of individuals with disabilities.

Awareness that sensitizes while educating is the most important first step in giving the officer an ability to appropriately, without hesitation or apprehension, address matters in all facets of community service. For more information on training and other matters related to disabilities, contact David Whalen at (716) 565-9338 or visit his website at www.disabilityawarenesstraining.com.

 

by John R. Budnik, Esq. civilliabilities.com  In Mueller v. Mena 125 S.Ct. 1465 (2005) the Supreme Court addressed an issue familiar to all law enforcement officers which is the detention of residents of a house in handcuffs during the execution of a search warrant.  The residents sued claiming a Fourth Amendment violation for the use of handcuffs during the search and for questioning one of the residents about immigration status.  The case went to trial with a jury award against the officers.  However, the Supreme Court held the officers’ actions in handcuffing the residents were “reasonable”. The case states that the detention was proper because the warrant was for an address and the persons detained were occupants at the time of the search.  Inherent in the detention is the right to effect the detention using force and the use of handcuffs was  reasonable because the government interest outweighs the marginal intrusion under inherently situations.  The underlying risk was great since the warrant was a search for weapons arising out of a gang shooting.  The residents claimed that the duration of two to three hours in handcuffs was per se unreasonable.  The court held that such delay was not unreasonable under the circumstances.  Another issue related to questions asked about immigration status.  The Supreme Court stated that police may ask general questions even if they have no basis for suspecting an individual.  There was no separate Fourth Amendment violation by asking about immigration status.  It was important that there was no showing that the detention in handcuffs was prolonged by any questioning. Once the reasons for the detention no longer exist, then the detention must end. Four of the nine justices indicated strongly that the use of handcuffs, while justified initially, could become a Fourth Amendment violation over the passage of time.  The need for the use of handcuffs and the time of detention for handcuffs should be reviewed on a case by case basis.  There was concern that the use of handcuffs could be used during the execution of every search warrant simply by asserting officer safety.  So, it is important that facts exist to justify officer safety to merit the use of handcuffs, and detention time in handcuffs would also be important. For instance, contrast the facts in Mueller v. Mena with the facts in Tekle v. U.S. 511 F.3d 839 (2007).  Tekle presented the other extreme factual end of the continuum.  In Tekle, the individual was barefoot and unarmed, clad in shorts and t-shirt and approximately 11 years old at the time of the detention.  He was alone and there were no less than 23 armed officers around.  He was not resisting arrest and was lying facedown.  The officers had already searched him for weapons or anything else to warrant further concern for their safety.  He was handcuffed for an additional 15 to 20 minutes.  Under such circumstances, the prolonged handcuffing of the person was not justified.  Often the factual situation faced by the officer will be somewhere in between Mueller and Tekle and the officer must decide right at the moment whether or not his situation merits detention in handcuffs. http://civilliabilities.com/

 

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