By John Reid & Associates

A fundamental principle of behavior symptom analysis is that truthful suspects send the same message on all three channels of communication.* Deceptive suspects may send different messages within the channels of communication.* One category of this possible symptom of deception is called incongruous behavior because the suspects nonverbal behavior contradicts what the suspect is saying on the verbal level.* Consider the fisherman who is verbally describing reeling in a fish that is two or three feet long but when he portrays the length of the fish with his hands, the distance between his fingertips is about twelve inches.* This inconsistency suggests that perhaps the fish was smaller than described.

It is possible that the fisherman simply was not good at estimating distances with his hands.* However, it is much more likely that his hands were telling the truth and his mouth was not.* A suspect has more conscious control over the verbal channel of communication than nonverbal communication. Consequently, when incongruous behaviors are observed, the channel causing the dissonance is probably the verbal one. i.e., the suspects nonverbal behavior is more likely accurate.

Many incongruous behaviors are the result of the truth unconsciously leaking from the deceptive suspects body.* On the verbal level, a suspect may adamantly deny talking to her husband on the day in question, while at the same time, her right hand is mimicking a phone conversation.* Another suspect being questioned about placing his hand on a teenagers breast may state that he put his hand on her stomach but, as he demonstrates on his own body, he clearly places his hand over his own breast.

This source of incongruent behavior is often fleeting.* After a moment or two, the suspect realizes the inconsistency and adjusts his nonverbal behavior to conform with his verbal statement.* The following are examples of fleeting incongruent behaviors:

I only fired one shot!* (The suspect initially holds up two fingers)

The car took off up the street. (The suspect first points down the street)

He had a scar running down his left cheek.* (The suspects finger points to her own right cheek, then switches it to her left.)

I hit her with an open hand. (The suspects right hand is initially clenched in a fist)

There is a natural association between a nonverbal head nod and a verbal yes response.* These two behaviors, within different channels of communication, typically reinforce each other.* However, not all head nods reinforce a yes answer.* When listening to a question, a suspect may nod his head indicating that he understands the question or agrees with a statement made by the investigator. Head nods that occur during the asking of a question should be interpreted as understanding the question.* However, if the head nod occurs during a verbal denial, it should be considered incongruous behavior, as the following example illustrates:

Q:* Have you ever thought about having sexual contact with your daughter?
A:* That is something I would never do.* (The suspect is nodding his head yes)

The hand shrug is another behavior that may reveal unconscious thoughts.* The underlying message being sent when someone shrugs their hands is, I don't know or, I don't care. This nonverbal behavior can either support or contradict a verbal response. An innocent suspect may be asked, Why do you think someone started that fire* It would be appropriate for that suspect to shrug his hands as he explains that he is not sure but that he knows the homeowner has been worried about making his next mortgage payment.*

On the other hand, it would be inappropriate for a suspect to shrug his hands during the following response:

Q: Joe, once we complete our entire investigation, how do you think it will come out on you?
A: Well, it should come out just fine. (Hand shrug)

Even though this suspect is saying that the investigation will come out fine, his nonverbal behavior is sending the message, I'm not sure

It is common for deceptive suspects to feign anger during an interview or interrogation.* One of the key indicators that differentiate real and feigned anger is incongruous behaviors.* Anger is one of the emotional steps within an entire psychological process that starts with frustration and concludes with physical aggression.* Consequently, by the time a suspect is legitimately angry, he will exhibit nonverbal symptoms of physical aggression.* Conversely, suspects who pretend to be angry may be yelling at the top of their lungs, but they have crossed arms, look up at the ceiling or pace back and forth within the interview room n there is an inappropriate lack of aggressive nonverbal behaviors directed toward the investigator.

A different source of incongruous behaviors occurs when a suspect is spontaneously constructing a false statement and is unable to coordinate the verbal and nonverbal channels of communication.* During our training seminars, we show the interview of a young woman who falsely reported to the police that she was the victim of an abduction.* During her description of the event she states that she got behind the wheel of her car and that the abductor sat next to her, in the middle seat.* The problem is that she is pointing to her left, which would place the abductor on the pavement outside the car.

When a suspect creates a false alibi or an alleged victim fabricates a crime, he may be so focused on the false verbal statement that the nonverbal channel is not yet on board with the verbal account. *Of course, after retelling the lie several times, the nonverbal channel catches up and learns to appropriately reinforce the verbal statement n detecting deception is always easier the first time a lie is told.

In conclusion, an investigator should always be alert for incongruous behaviors that may occur between a suspect is verbal and nonverbal channels of communication truthful suspects send the same message on all channels of communication but deceptive suspects may not.* Incongruous behaviors may be fleeting, and therefore, the investigator needs to pay close attention to t he suspect is initial nonverbal behaviors to make certain they reinforce the suspect is verbal statement.* Especially when eliciting an initial open account from a victim or an initial alibi from a suspect, the investigator should look for possible inconsistencies between nonverbal actions and the verbal description. Incongruous behaviors are less likely to occur after a lie has been repeated.

Credit and Permission Statement: This Investigator Tip was developed by John E. Reid and Associates Inc. Permission is hereby granted to those who wish to share or copy the article. For additional 'tips' visit www.reid.com; select 'Educational Information' and 'Investigator Tip'. Inquiries regarding Investigator Tips should be directed to Janet Finnerty, johnreid@htc.net. For more information regarding Reid seminars and training products, contact John E. Reid and Associates, Inc. at 8002555747 or www.reid.com.

 

  

by Samuel Lopez

Reprinted from The International Law Enforcement Educators and Trainers Association (ILEETA)

 

Introduction

Human trafficking is a global problem. Approximately 600,000 to 800,000 victims are trafficked annually across international borders. Of the 14,500 to 17,500 victims that come into the U.S. from human trafficking brokers in Africa, Asia, India, Latin America, and Eastern Europe, approximately 50% are under the age of 18 and 80% are female (USDOJ, 2003). According to the Salvation Army, it is estimated that up to 150,000 foreign victims of slavery are in the United States from 49 countries in Africa, the Arab world, Southeast Asia, and nations formerly part of the Soviet Union, and that about 325,000 children are commercially sexually exploited in this country annually. (Frederick, 2007). Human trafficking is estimated to generate an annual profit of $3.5 billion dollars and it is considered to be the second largest criminal industry worldwide after drug dealing. (USDHHS, 2008). In fact, there are estimates that one human trafficked woman for sex can possibly earn her traffickers approximately $250,000 in her lifetime. (Sweeney, 2005). As law enforcement officers, social workers, criminal court officers, social services, and medical professionals, it is our duty to protect and care for the people in our community.

 

What Is Human Trafficking?

Human trafficking is modern day slavery and there are two types of trafficking: sex trafficking and labor trafficking. According to the federal human trafficking law, the Trafficking Victims Protection Act of 2000, sex trafficking is the recruitment, harboring, transportation, provision, or obtaining of a person for the purposes of a commercial sex act, in which a commercial sex act is induced by force, fraud or coercion. Sex trafficking victims can be found, among other, in illegal brothels, hotels, motels, massage parlors, street prostitution, exotic dance clubs, escort services, modeling agencies, and even in private residential homes. Labor trafficking is the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage or slavery. (TVPA, 2000). These types of victims can be found in agricultural sites, migrant work areas, hotels, motels, factories, garment shops, exotic dance clubs, restaurants, and private residential homes.

In either case, human trafficked people are victims of fraud in that deception or promises are made to them to receive employment, be married, earn a much better living than in their country, receive an education, or a better living environment. They are recruited by ads in their local newspapers, by being abducted, by being hired through a fake employment agency, by being referred to by a friend, or by word of mouth. These victims are coerced by being threatened of physical restraint or serious harm against them or another person, particularly one of their family members. With little overhead and a steady stream of well paying customers, the profit margin is well worth the effort of recruitment for traffickers and the greatest part of the problem can be attributed to those who pay for, or utilize the slaves and services. (USDOJ, 2008).

Statement of the Problem

According to the 2008 US Department of Health and Human Services Report, approximately 1,362 human trafficking victims were rescued between 2000 and 2007. With the 17,500 number of human trafficking victims that are estimated of being victimized in the United States, the problem may lie in the identification of human trafficking victims and the arrest and prosecution of human trafficking offenders. The biggest challenge in assisting trafficking victims is that they are not a self identifying population and they are vulnerable and isolated, subjected to physical, emotional and mental abuse. (Stankus and Kuhn, 2007, pp. 39). In Chicago, during a domestic sex trafficking study of women and girls, almost half of those interviewed who entered the sex trade on their own said that did so in order to support a drug habit and many participants were victims of childhood sexual assault, abandoned by their mothers, or homeless. (Raphael and Ashley, 2008). Because of the location of O‘Hare International Airport, go is a strategic location for traffickers to lure unsuspecting people into the United States. In a 2003 article, The New York Times labeled Chicago as a national hub for human trafficking while in 2005, the FBI designated Chicago as one of thirteen locations of high intensity child prostitution. (Tanagho, 2007).

Causes of the Problem

There has been a lot of criticism of law enforcement regarding the small number of human trafficking victims that have been identified in comparison to the estimates of victims that exist. This can be attributed to the limited number of officers to investigate cases and interview potential victims, limited resources for service providers and advocates to educate and identify potential victims, and the limited resources for targeted training for law enforcement officers. (Clawson and Dutch, 2008). In 2005, Illinois began to take a more assertive stance by passing the Illinois Involuntary Servitude Law, which mirrors the federal TVPA 2000 law. Even though this law exists, it appears that very few officers and practitioners are aware of it and the elements involved in involuntary servitude, but lately, more and more cases nationally, including the Chicago land area have been discovered by patrol officers, tactical officers, and detectives who were investigating other types of criminal cases.

Human trafficking is difficult to detect even with proper training and education. The Department of Justice admits difficulty in identifying national cases of trafficking, as it seems there is trouble in differentiating between ―voluntary‖ prostitution, and that which is forces. (USDOJ, 2008). According to the Minnesota Statistical Analysis Center (MSAC) in 2007, they encountered a similar response from the law enforcement officers that were surveyed. Approximately 41% of 119 officers in 2006 and 45% of 106 officers in 2007 believed that there was a lack of training and available information about human trafficking. In a survey to determine the lack of human trafficking training by law enforcement agencies in the northwest suburban area of Chicago, from a total of 110 questionnaires, 82% were familiar with human trafficking, 12 % received previous training, 75% wanted human trafficking information, 20% knew what questions to ask human trafficking victims, 13% knew what resources were available for human trafficking victims, 23% knew of federal human trafficking laws, and 17% knew of the Illinois human trafficking law. (Lopez and Lopez, 2009).

Human Trafficking Training as a Solution to the Problem

States, such as Florida, Georgia, Michigan, Minnesota, and Texas have been successful in providing human trafficking awareness and investigation training to their law enforcement; however, these states are in the vast minority. In cases where law enforcement agencies have been consistently trained, they have identified cases of human trafficking during the course of investigations during drug raids, domestic violence, and civil housing violations. Additionally, 92 % of those agencies who identified cases of human trafficking reported a connection between trafficking and other existing criminal networks such as those involving drug

 

distribution or prostitution in their local community. (Farrell, 2007).

In The Texas Response to Human Trafficking Report in 2008, the Office of the Attorney General reported that the need for training permeates the entire cycle of human trafficking, from the early detection of the crime, investigation and subsequent prosecution, to the delivery of services and ultimately to the prevention of the crime, and is vital for educating and cross training all those working to assist victims of human trafficking. Local police officers are among the first to encounter victims and perpetrators of human trafficking through activities involving traffic accidents, checks for well being, suspicious incidents, and anonymous tips. A previous study of human trafficking found that trafficking victims often have contact with local law enforcement authorities; nevertheless, in 11 of 12 cases examined, authorities failed to notice the victims and take appropriate action to bring them to safety. (Wilson and Dalton, 2008). There is growing concern that officers do not know specifically which questions to ask someone to determine with they are a human trafficked victim.

Investigating Human Trafficking Incidents

When federal law enforcement officers conduct human trafficking investigations, they approach the operations as a sophisticated criminal enterprise similar to a drug trafficking organization. Consider that both of these types of operations are profitable with international ties, they are protected by violence, they have established routes and stash houses, and both are selling a product that‘s in demand: people versus drugs. The trick is to ―follow the money.‖ In cases where a person is suspected as being a human trafficking victim, consider conducting the interview in private and in plain clothes. The types of victims have been lied to and they will not open up to anyone who talks to them. A number of these victims are not only emotionally and physically traumatized, but typically they are part of a foreign culture. Be patient and consistent in your investigation and work through bad information, documentation, or fake identification from victims. Ask simple and direct questions that are not compound in nature and regard the victims as potential witnesses, central to building a case against their trafficker. If your agency has an assigned Police Social Worker, contact them for assistance.

Pertinent questions that law enforcement officers can ask to determine if a person is a victim of human trafficking may include:

· Is there anything that you would like me to help you with?

· What type of labor/services do you do?

· How long have you been working here?

· What are your hours of work?

· Have you been paid and what were you paid?

· Do you owe your boss money and for what?

· Does your boss take anything out of your pay?

· Describe the conditions of your workplace.

· Are you allowed to come and go freely?

· Are you afraid to leave?

· Where do you sleep?

· Have you or anyone you work with been abused (battered) at the workplace?

· Have you or anyone you work with been threatened at the workplace?

· Has anyone threatened to harm your family?

· Where were you working/living before you started working here?

· How did you learn about this position?

· What type of work/services were you told you would be doing?

· How did you get to your place of employment?

· Did anyone pay for the trip?

· Did you owe money after you started working?

· Did you have to pay money up front?

· Do you have your passport or does someone else have it?

 

In cases where you have a victim and/or an offender in your custody, you can contact your District State‘s Attorney Office if it involves your local jurisdiction, Immigration and Customs Enforcement (ICE) if it involves immigration issues, or the Federal Bureau of Investigations (FBI) if it involves the transportation of the victim across state lines or multiple jurisdictions.

Options for Human Trafficking Training

As an effort by the U.S. Department of Justice to provide resources to law enforcement officers throughout the United States, 42 human trafficking task forces are present in major cities and large regional areas, (See Appendix A). One of the federally funded task forces is the Salvation Army‘s P.R.O.M.I.S.E. (Partnership to Rescue our Minors from Sexual Exploitation). Since 2004, The Salvation Army developed the PROMISE model (Partnership to Rescue our Minors from Sexual Exploitation) to combat the sexual trafficking of our children and this model includes the formation of a task force which engages in initiating the four main provisions of PROMISE, which are: Awareness, Prevention, Intervention, and Service Delivery and they are represented by members who represent the social service, education, legal, judicial, healthcare, and law enforcement from the Chicago land community. (Salvation Army, 2011). They have sponsored or have networked with regional and national social services and non for profit organizations to provide human trafficking awareness training to area law enforcement officers and social service providers. To learn more about this organization, they can be contacted through their web site at www.sapromise.org.

Other organizations, such as Heartland Alliance, a non for profit agency located in Chicago, are also well experienced in identifying, supporting, and representing human trafficking victims as victim advocates. This organization is made up of attorneys, social workers, and victim advocates they have developed training programs for identifying sex trafficking victims. Representatives of this agency have been contacted before in the past and they are willing to travel to provide human trafficking training and education to law enforcement agencies during their annual training inservices or as a regional training seminar. Not only do they provide training, but they are used as First Responder Advisors by law enforcement officers in cases where human trafficking might be suspected. Officers can call the Heartland Alliance‘s National Immigrant Justice Center 24 hours a day at 3124464419 or 3122960303. Their main web site is www.heartlandalliance.org.

Lastly, the International Association of Chiefs of Police (IACP) has developed a training program and resources that are all available online. In their 2004 Critical Response Newsletter, the IACP first discussed and defined human trafficking, law enforcement‘s role as First Responders, and how to investigate human trafficking cases. Since then, they have created a free training program entitled ―The Crime of Human Trafficking: A Law Enforcement Guide to Identification and Investigation‖ that includes a training video and downloadable guide book that can be accessed completely online on their web site: http://www.theiacp.org/PublicationsGuides/ContentbyTopic/tabid/216/Default.aspx?id=1001&v=1.

Conclusion

Through becoming educated in human trafficking laws, procedures, and investigations; developing a cohesive operational action plan; sharing law enforcement intelligence and resources; and learning to work with federal law enforcement partners, social service agencies, and your District State‘s Attorney Office, law enforcement agencies have a greater opportunity to detect, investigate, and prosecute human trafficking offenders throughout the major cities and rural areas in the United States. It is through this collective and cooperative effort that police officers can remain vigilant, on guard, and become successful in overcoming and overtaking criminal offenders and predators of human life. ILEETA

References

Clawson, H. and Dutch, N. (2008). Identifying Victims of Human Trafficking: Inherent Challenges and Promising Strategies from the Field.

Study of HHS Programs Serving Human Trafficking Victims, U.S. Department of Health and Human Services. Retrieved on September 19, 2009 from http://aspe.hhs.gov/hsp/07/HumanTrafficking/IdentVict/ib.htm.

Farrell, A. (2007). Testimony on Human Trafficking before the Committee on Judiciary. U.S. House of Representatives (October 31).

Frederick, A. (2007). The Fight Against Human Trafficking: Global Forces Rally to Fight Modern day Slave Market in Laborers, Children, and Victims of the Sex Trade.

The Compiler (Winter/Spring).

International Association of Chiefs of Police (2007). The Crime of Human Trafficking: A Law Enforcement Guide to Identification and Investigation. Office on Violence Against Women, Grant No. 97WTVXK003.

Lopez, M. and Lopez, S. (2009). Human Trafficking Awareness for Law Enforcement in the Northwest Suburban of Chicago Survey.

Raphael, J. and Ashley, J. (2008). Domestic Sex Trafficking of Chicago Women and Girls. Illinois Criminal Justice Information Authority, (May).

Salvation Army. (2011). Salvation Army‘s PROMISE. Retrieved on January 3, 2011 from http://www.sapromise.org.

Stankus, A. and Kuhn, J. (2007). "Effective Implementation of the Trafficking of Persons and Involuntary Servitude Articles: Lessons from the Criminal Justice System Response to the Illinois Domestic Violence Act" ExpressO. Retrieved on September 11, 2009 from http://works.bepress.com/alison_stankus/1.

Sweeney, A. (2005). Surviving Chicago‘s Sex Slave Trade. Retrieved on October 10, 2009 from http://www.ipsn.org/organized_crime/prostitution/surviving_chicago.htm.

Tanagho, J. (2007). New Illinois Legislation Combats ModernDay Slaver: A Comparative Analysis of Illinois AntiTrafficking Law with Its Federal and State Counterparts. Loyola University Chicago Law Journal, Vol. 38.

Trafficking and Violence Protection Act. (2000). Public Law 106386. Retrieved on September 18, 2009 from http://www.state.gov/documents/organization/10492.pdf.

U.S. Department of Health and Human Services. (2008). Campaign to Rescue and Restore Victims of Human Trafficking. Retrieved on September 15, 2009 from http://www.acf.hhs.gov/trafficking.

U.S. Department of Justice. (2003). Assessment of U.S. Activities to Combat Trafficking in Persons. Retrieved on November 1, 2009 from http://www.state.gov/documents/organization/23598.pdf.

U.S. Department of Justice. (2008). BJA/OVC Human Trafficking Task Forces.

U.S. Department of Justice. (2008). Child Exploitation and Obscenity Section:

Trafficking and Sex Tourism. Retrieved on March 23, 2009 from http://usdoj.gov/criminal/ceos/trafficking.html.

Wilson, J. and Dalton, E. (2008). Human Trafficking in the Heartland: Variation in Law Enforcement Awareness and Response. Journal of Contemporary Criminal Justice, Vol. 24, No. 296.

 

About the Author: Samuel Lopez began his career in law enforcement in 1995 as a parttime Auxiliary Public Safety Officer with the Rosemont Police Department before continuing his career with the Des Plaines (IL) Police Department as a fulltime sworn Police Officer. Since 1998, he has worked as a Patrol Officer, Juvenile Officer, Spanish Language Translator, and Tactical Response Team Crisis Negotiator. Currently, he works in crime scene investigations as an Evidence Technician and as an Inservice Instructor for his department. He earned his Master of Science degree in Criminal Justice along with Graduate Certificates in

Homeland Security Studies, Law Enforcement Intelligence Analysis, and Security Management from Michigan State University. He earned his Bachelor of Science Degree in Criminology & Criminal Justice from Indiana State University. Presently, he is completing a Graduate Certificate in Forensic Criminology from the University of Massachusetts at Lowell. He has done extensive research on human trafficking as a MSU Grad Student and he has received numerous training in human trafficking through Salvation Army’s PROMISE Task Force and from other social service seminars in the Chicagoland area. He has also provided inservice education in human trafficking investigation to the members of his department. He can be contacted at slopez@desplaines.org.

 

   

By Massad Ayoob

 

Reprinted from The International Law Enforcement Educators and Trainers Association (ILEETA)

 

 

At belly to belly distance, you don‘t need much illumination…but you may well need something else a gun mounted flashlight provides. The rise of the flashlight equipped police service pistol began many years ago, with special reaction teams, notably LAPD SWAT. It proved that it could be a lifesaver in searching darkened buildings for dangerous suspects. K9 was the next arm of law enforcement to pick up on the value of combined white light and handgun. With one hand often being required to hold a big dog‘s leash, the canine handler was down to a single hand to manipulate both gun and flashlight, often outdoors on moonless nights or in the same dark buildings where SWAT had first proven the value of the concept. Finally, wise administrators realized that patrol division street cops found themselves searching pitch-black buildings and dark alleys and performing midnight manhunts in the woods too, and authorized or even issued light mounted service pistols with attached lights to the rank and file. Synthetic holsters proved themselves adaptable to the bulkier outline of pistols with lights, and the tactical illumination tool industry sped the process by introducing ever more compact white light units compatible with handgun mounting.

Today, it‘s routine to see ―the cop on the street‖ wearing a holstered pistol with flashlight attached. We will never know how many tragedies have been prevented because the bright white light allowed the officer to see that a suspect was holding keys or a cell phone instead of a gun in time to keep him from pulling the trigger. We‘ll never know how many police lives have been saved because the gun mounted light blinded the armed suspect and either intimidated him into surrendering, or put him far enough behind the curve that the officer could fire the first accurate shot and prevail.

In all of this, however, one other significant advantage of the light equipped service pistol appears to have been largely missed.

 

Stand-Off Capability

Let‘s compare two starkly similar police encounters involving deadly force. St. Paul, Minnesota: An officer is losing a fight with a much bigger, stronger attacker who has him down and is trying to kill him. In desperation, the officer draws his pistol, presses it to the would-be cop killer's body, and pulls the trigger. Nothing happens. The pressure has forced the muzzle out of battery, and the gun will not fire. Jacksonville, Florida: The suspect has drawn a .45 auto, shot the cop in the face, and shot him six more times. The officer returns fire, wounding the suspect several times. The armed gunman falls atop the supine officer, who press contacts his .40 against the man‘s skull and shoots him three times in the head, ending the fight.

Both departments issue America‘s most popular service pistol, the Glock Model 22. What was the difference? The Jacksonville cop had a Streamlight TLR1 flashlight mounted on his Glock .40. Because the head of most such flashlights protrudes beyond the muzzle, it kept the barrel/slide assembly from being shoved out of battery, allowing the gun to function!

The great majority of auto pistols won‘t fire if pressed hard at the muzzle against an opponent‘s body.

Reprinted from  WWW.PATC.COM

The 4th Amendment and Motel Rooms

October 2011
by Brian S. Batterton, Attorney

©2011 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On September 1, 2011, the Court of Appeals of Georgia decided the State v. Woods[i], which serves as an excellent review of criminal procedure issues related to the motel rooms, consent, detentions and the Fourth Amendment. The facts of Wood, taken directly from the case are as follows:

Six police officers, including Officer Tommy Grier, the state's only witness at the suppression hearing, went to a motel to execute a warrant for the arrest of Lee on aggravated assault charges. The officers went to the room listed on the warrant, but it was unoccupied. Officer Grier testified that the manager said that Lee was staying in Room 214. Neither Lee nor Woods, however, were on the registry for the room. In fact, the room was registered to Lee's sister. At the hearing, the manager testified that he did not know whether Lee, a long-term resident of the motel, was staying in Room 214, but he suspected it.

The officers went to Room 214 and knocked on the door. At least one of the officers had his weapon drawn. Woods opened the door. The officers asked Woods if Lee was in the room, and he said no. They asked if they could enter the room to look for her, and Woods gave permission. As they were completing the search, a passerby mentioned that Lee was in Room 306. Most of the officers left the room, but one or two stayed with Woods to make sure he did not call Lee to warn her of the officers' arrival. At this point, the officers in the room holstered their guns.

The officers found Lee in a room on the next level of the motel and took her into custody. Ten to 15 minutes later, Officer Grier returned to Room 214 to speak with Woods. As he was walking into the room, another officer with Grier's unit, Officer Benjamin Griggs, recognized Woods and identified him by his street name, Blue. Griggs said that Woods had just been released from prison where he had been incarcerated for cocaine trafficking. Grier confirmed this information with Woods and began asking him questions. Woods told Grier that he had nothing illegal in the room, that clothes hanging next to the sink were his, and that he stayed in the room. Grier then asked Woods for permission to search the room. Woods consented.

The officers began searching the room. In a drawer, they found men's underwear and socks, which Woods identified as his. They also found a picture of Woods and his son and his paperwork, including a check stub. The officers asked Woods what was in the room safe. Woods responded, "I don't know what's in the safe, but it ain't mine." Grier asked Woods if he could search the safe, and Woods responded, "Go ahead. But I don't know the combination." Grier retrieved a device for opening the safe [*4] from the manager's office. As Grier walked by, the officer who was detaining Lee told Grier that Lee had admitted that there was marijuana and crack in the safe and that it was hers.

Grier returned to the room, opened the safe and found crack cocaine and drug paraphernalia inside. Grier then arrested Woods. [ii]

At a motion to suppress, the trial court ruled that both Lee and Woods had standing to challenge the search of the motel room since Lee was a resident of the room and Woods was an overnight guest who kept personal items in the room. Further, the trial court held that the police lacked reasonable suspicion to detain Woods after learning Lee was not in the room and after Lee was arrested at another room. Thus, Woods detention was unlawful, and, as such, his consent to search the safe was not voluntary. The state appealed the ruling of the trial court to the Court of Appeals of Georgia.

I. Lee

ISSUE ONE
Was Lee a resident of the motel room with standing to object to the search of the motel room?

The court of appeals first examined whether Lee had standing to object to a search of the motel room. The state argued that there was insufficient evidence for the trial court to determine that Lee was, in fact, a resident of the motel room that was searched. To this argument, the court of appeals noted the motel manager told the police that Lee was a resident of motel room at issue and stated that she stayed there with her sister, the woman who actually rented the room. Because the motel manager testified at trial and was subject to cross examination on his testimony, the court found that it was not clearly erroneous for the trial court to have held that Lee was a resident of the motel room at issue.

As such, Lee had standing to object to the search of the motel room because she was a resident of that room and, as a resident, she possessed a reasonable expectation of privacy in the room. [iii]

II. Woods

Next the court examined whether the trial court was correct in granting Woods’ motion to suppress. The state put forth three arguments to support their contention that Woods’ motion to suppress the evidence should have been denied. First, the state argued that Woods lacked a reasonable expectation of privacy in the motel room (thus he would have no standing to contest the search). Second, the state argued that Woods “abandoned” his interest in the safe and therefore lacked a reasonable expectation of privacy in its contents. Third, the state argued that Woods validly consented to a search of the safe.

ISSUE TWO
Did Woods possess a reasonable expectation of privacy in the motel room?

The state proffered that Woods was merely a guest at the motel room, and, as such, did not possess a reasonable expectation of privacy in the room. The state points that the fact that Woods was not a registered guest at the room, did not have a key and only had Lee’s permission to sleep there.

However, Woods argued that he did stay overnight in the room, and, as the police saw, he did keep clothes and other personal items in the room. The court of appeals then held that because he occupied the room as an overnight guest, he possessed a reasonable expectation of privacy in the room with standing to object to the search. [iv]

ISSUE THREE
Did Woods abandon his expectation of privacy in the safe when he denied possessing the safe and its contents?

Regarding the issue of abandonment, the court of appeals stated:

The question of abandonment for Fourth Amendment purposes turns on whether under the totality of the circumstances, the investigating officer reasonably believed at the time of the search that the accused had relinquished his interest in the property to such an extent that he no longer had a reasonable expectation of privacy in it. [v]

The court of appeals then stated that because the police asked Woods for consent to search the safe, they possessed a reasonable belief that Woods actually did possess a reasonable expectation of privacy in the safe. In further support of this was an officer’s testimony in court that he did believe that Woods possessed authority to consent to a search of the safe.

As such, the court held that Woods did not abandon his expectation of privacy in the safe.

ISSUE FOUR
Did Woods validly consent to a search of the safe?

The court of appeals began its analysis of this issue by stating:

Police-citizen encounters fall into three categories: "(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief 'seizures' that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. [vi]

The court of appeals then noted that, in Woods case, the state did not argue that Woods was validly detained based on reasonable suspicion or probable cause. As such, the contact with Woods, to be legal, must have been a valid consensual encounter. If the encounter was consensual, Woods consent could be deemed voluntary, rather than the product of an unlawful detention.

The court then examined whether the encounter de-escalated from a second tier encounter (investigative detention) to a first tier encounter (a consensual encounter). The court stated that it must look at the totality of the circumstances and consider the following factors:

[W]hether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example — the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and "excesses" factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. [vii]

When comparing the facts of Woods’ case to the factors above, the court observed that there was no clear endpoint to the initial detention indicating Woods was free to go. Further, several officers entered Woods room and questioned him after Lee was arrested which does not indicate the encounter is consensual. Further, the reduction in officers when they initially learned that Lee was not in the room did not de-escalate the encounter into a consensual encounter.

The court of appeals then stated that because the officers did not have sufficient reasonable suspicion or probable cause to continue the detention, the detention was illegal. Further, because the detention was illegal, the consent is not valid because a person subject to an unlawful detention cannot give valid consent. [viii]

Lastly, the state attempted to argue that the police saw marijuana in the room which justified Woods’ detention. However, there was evidence that this evidence was not seen until after Woods was detained and had given his consent (which was invalid consent) to search the room. The court stated:

Post-seizure events cannot justify, after the fact, a detention that was unreasonable when it occurred. [ix]

In conclusion, the court of appeals affirmed the trial court in its granting of the motion to suppress in favor of both Lee and Woods.

_____________________________

NOTE: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.

CITATIONS:

[i] A11A1199, 2011 Ga. App. LEXIS 790

[ii] Id. at 2-4

[iii] Id. at 7

[iv] Id. at 9 (citing Snider v. State, 292 Ga. App. 180, 182 (663 SE2d 805) (2008)( Compare Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008) (because defendant was not an overnight guest of the registered guest, did not have a key to the room, and had no luggage in the room, he had no expectation of privacy in the room).

[v] Id. at 9-10 (quoting State v. Browning, 209 Ga. App. 197, 197-198 (1) (433 SE2d 119) (1993))

[vi] Id. at 11 (quoting State v. Davis, 206 Ga. App. 238 (424 SE2d 878) (1992))

[vii] Id. at 12

[viii] Id. at 14 (citing Pledger v. State, 257 Ga. App. 794, 797 (572 SE2d 348) (2002))

[ix] Id. (citing See Norton v. State, 283 Ga. App. 790, 793-794 (2) (643 SE2d 278) (2007); State v. Combs, 191 Ga. App. 625, 628 (2) (382 SE2d 691) (1989) (physical precedent only))

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