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December 2011
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By John Reid & Associates
It is human nature to seek acclaim and recognition. Given the
choice, most people would rather be well known and respected than an
obscure outsider who is unimportant and ignored. Typically, this
basic need is satisfied in socially acceptable ways. Some people
excel in school, sports, or the arts. Others may perceive themselves
as being a really good parent or spouse. Still others strive to be
outstanding employees or civic leaders. There are individuals,
however, who are unable to satisfy this basic human drive through
socially acceptable behavior (or have an insatiable need to prove
their superiority). Some of them become esteem motivated offenders.
Most crimes make sense to the average person. A man loses his job
and is threatened with eviction, so he robs a convenience store to
pay his rent. Another man kills his wife during a heated argument.
While we know that these acts are illegal and wrong, at least the
motives are understandable. This is often not the case with esteem
motivated crimes, which include a wide range of behavior ranging
from false claims of rape and con games to sexual molestation,
product tampering and arson.
Esteem motivated crimes are committed to elevate the suspect's self
worth. Through his criminal behavior the suspect demonstrates
superior power, influence, intelligence or skill over his victim
which may be a person, a company or agency, or even society as a
whole. The crime may reap financial or revenge gains, but the
primary drive is to elevate the suspect's deflated esteem. John
Wilkes Booth, for example, did not hate Abraham Lincoln or his
policies. He assassinated Lincoln so that he would be remembered in
history as someone who killed an important person.
Characteristics of Crimes
One characteristic of an esteem motivated crime is that the offender
uses stealth, ingenuity, or cunning to accomplish his goal. To
obtain a password into a government computer database, an employee
could be tortured to reveal the password. But obtaining the password
is not the goal for the esteem motivated offender. Demonstrating his
superior intellect by cleverly hacking into the system is his goal.
Manipulation of the victim is very common, e.g., a rapist talking
his way into the victim's apartment or the child molester telling
the victim to keep their activity a secret. The arsonist may start a
small fire to cause the building to be evacuated and feel powerful
as he realizes it was his action that caused the emergency vehicles
to arrive. A good indication that a crime was esteem motivated is
that the victim is left feeling foolish, e.g., Why didn't we use a
more sophisticated security system; Why did I let him in my
apartment; Why did I believe that guy was a police officer? Why did
I let my boss harass me in that way?
Esteem motivated crimes often escalate over time. In the beginning,
it may have been sufficient for the offender to meet a child in a
chat room and persuade the child to reveal information about her
body. Eventually, this activity is no longer a challenge or
psychologically rewarding, so the offender attempts to obtain
pictures of the child and then to eventually meet her in person.
Esteem motivated crimes often come to the attention of authorities
after they have escalated to criminal behavior. These offenders may
become violent in their late stage behaviors, e.g., pulling fire
alarms escalates to calling in bomb threats which escalates to
planting actual bombs.
An exception to the foregoing characteristic is the person who
experiences a situational loss of esteem or self-worth. This may be
from losing a job, breaking off a relationship, failing in school or
having an upcoming stressful event such as a court trial or wedding.
Under this circumstance, the suspect may be a onetime offender. A
good example of this is the suspect who makes up a story about being
the victim of a crime (abduction, rape, robbery, arson) to seek
attention or emotional support from loved ones.
Esteem motivated offenders generally act alone. Their crimes
typically do not require an accomplice and the offender does not
want to share the glory or power with another person. However,
sometimes the esteem is derived from manipulating a person into
joining the offender in illegal activity. John Allen Muhammad, the
DC sniper, recruited a younger man to participate in the sniper
activity. His feeling of power was derived not only from deciding
who would live or die, but also in manipulating the accomplice.
Characteristics of Offenders
While esteem motivated offenders obviously have an inadequate
personality, with predominant features of paranoia and
oversensitivity to criticism (real or perceived), these traits are
often veiled within the suspects persona. What is more likely to be
apparent to the investigator is that these individuals have a normal
to above normal intelligence, are long-range planners, and have good
impulse control.
While many of these offenders are reclusive and very private, others
express high confidence and may interject themselves within the
investigation by contacting the police or media. Sometimes the
offender will leave an obvious clue or signature at the crime scene
to make certain the offender receives proper credit for the act.
Interview / Interrogation
Because of underlying low esteem, these offenders should not be
approached in an authoritative or intimidating manner. It is more
productive to present the interview as an opportunity to assist the
investigator, e.g., I would appreciate your assistance or as part of
a logical sequence of investigative steps, e.g., I am interviewing
everyone who has security clearance to that area. A structured
interview approach, such as the Behavior Analysis Interview, is
ideal for this offender.
Esteem motivated offenders have very shallow insight on their
behavior and will place blame for their crime onto someone or
something else. For example, they will project blame for their
criminal behavior onto the victim, unfair treatment by an employer,
an unjust government or society or affected judgment as the result
of being under the influence of drugs or alcohol. It is not at all
uncommon for these offenders, even after they have confessed, to
maintain this distorted perception behind their crime, e.g., I
touched her to show love and affection, He deserved what I did to
him. I am not guilty.
This lack of insight, coupled with resentment toward authority, will
cause the esteem motivated offender to reject any effort to obtain a
confession through intimidation or threats of consequences. These
offenders will respond well to an interrogation approach that
expresses understanding toward the suspect's behavior and reinforces
underlying justifications for his crime.
In conclusion, the first step of an investigation is to identify
what motivated the criminal behavior. Typically, investigators think
of financial or emotional motives (anger, revenge, jealousy, etc.).
However, many crimes are committed for the sole purpose of elevating
the offender's self esteem, and this motivation should always be
considered. While these offenders cover a broad spectrum of
backgrounds and personality traits, they all will project blame for
their crime away from themselves and justify their criminal behavior
by distorting reality. These underlying attitudes will surface
during a structured interview which will guide the investigator in
identifying these offenders. During the interrogation theme, the
suspect's distorted reality should be reinforced to create an
environment in which the suspect feels more comfortable telling the
truth.
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 Dan Danaher
Reprinted from The
International Law Enforcement Educators and Trainers Association
(ILEETA)
In today‘s violent society we are losing officers at an alarming
rate. Within the past few years we have seen officers killed
while responding to , entering, or searching a structure: places
like Pittsburgh, Detroit , Oakland and San Diego to name a few.
These incidents varied from domestic disturbances, suspicious
persons, barricaded gunmen, to warrant service. These are the
types of standard calls that officers answer every day and yet
we continue to lose officers. There is no way we can eliminate
casualties in such a dangerous and unpredictable occupation, but
with the use of better tactics and teamwork we can minimize how
many casualties we take.
If you were to ask average officers to perform an entry and
subsequent search of a structure, you would probably witness a
dynamic entry at the breach point. There would more than likely
be little if any coordination between the officers on where and
how to proceed. Team movements may be reduced to two officers
entering individual rooms, ―digging their corners‖ and then
traversing the perimeter of the room until return back to the
entry point, or next opening. If a suspect is encountered, both
officers tend to become fixated on the suspect and leave
themselves vulnerable to attack from unforeseen suspects. This
non-methodical type of a search is characteristic of law
enforcement officers across the
country.
It may work 98% of the time against an adversary whose intent is
to evade detection or capture, but who lacks the will to go the
full measure and kill a police officer in order to escape. The
question is this; do we train for the 98% who are unlikely to do
us harm, or the 2% who are more than willing to kill us at the
first opportunity?
The problem: Most officers perform as individual entities.
They handle calls for service, affect traffic stops, initiate
arrests, perform custodial searches, transport prisoners, settle
disputes, investigate crimes, conduct interviews/interrogations
and resolve a host of other problems on a daily basis. They
condition themselves to get the job done, whatever that job may
be, including the dangerous job of clearing structures. With
some exceptions, officers can handle most of these duties by
themselves and do so successfully, however, clearing a
structure, effectively and safely requires teamwork.
Because entering a building and searching for other humans is
inherently dangerous, it should not be performed alone; it
normally requires a minimum of two officers. However, if both
officers are to enter a room, they will invariably give up
ground that they have already secured because they have lost
sight of the remainder of the structure. This is not only
ineffective, it is unsafe. For if both officers are searching,
who is providing security?
Once officers have cleared a room they then have to
reorientate themselves and determine where they will proceed
next. This may be repeated throughout the clearing process,
which waste valuable time and allows the potentially lethal foe
an opportunity to gain the advantage by formulating plans,
locating escape routes, reloading, or potentially taking
hostages. By applying a few techniques and principles, we can
move officers through an area in a coordinated, systematic
fashion, with minimal communication and greater efficiency.
The technique is called ―LineBacking‖ and can be used to clear
any type of structure with as little as three to four officers.
LineBacking is a method of moving a group of officers through
exposed areas by covering angles of attack. Officers form a line
(stack) with a lead officer (number one) followed by at least
one other officer. Attached to number one is the shield officer.
The shield officer is responsible for covering the angles to the
opposite side of the entry point, or areas that leave the search
element exposed unsecured threat areas. The shield officer also
maintains the integrity of the formation by controlling the
speed and movement of the number one officer. Additionally, once
officers begin to search areas, the shield will maintain
security and determine the teams next move. LineBacking starts
as soon as the officers enter the structure from the initial
breach point. The technique works from the perspective of the
OODA Cycle (Observe, Orientate, Decide, Act). The technique
requires officers to move dynamically when necessary (moving
through danger zones) and stealthily (slow & deliberate) when
the opportunity presents itself.
The Breach (Clearing with four officers)
Ideally, officers position themselves to either side of the
entry point. This is done so officers can attempt to clear as
much of
the
initial area as possible from their position of
cover/concealment at the door. Officers closest to the entry
point assume a low profile known as ―tuck & duck‖ (front officer
kneeling or lowprofile), this technique is used whenever
officers are stacking on corners and doorways. The next closest
officers straddle the front officers from over the top. This
affords multiple sets of eyes and muzzles for added coverage.
Once officers have breached the door, they begin to observe the
initial area to be cleared. If officers encounter anyone, they
have three options of engagement; verbally, physically, or by
fire. Suspects who are observed should be called out to the
officers and taken into custody by using cover/contact
principles of engagement. Once the officers have oriented
themselves to the layout and hazards of the initial entry, the
side which holds the greatest threat will be entered first. This
determination is made because it is the largest part of the
room, or it contains the greatest number of secondary threats.
The officer who is visually orientated to that side of the room
enters first. This is followed up by officers entering from
alternating sides until all are occupying the initial entry
area.
The Entry
Once the team has entered the initial area, they do not want
to continue to advance or ―run the walls‖. Each step an officer
takes creates another angle within the area which may not be
covered by supporting officers. Officers should move only as far
as necessary to allow the rest of the members to vacate the
―fatal funnel‖ and make entry into the room, this is generally
not more than a few feet. At this point we have established two
sets of officers, just inside the area, on either side of our
entry point. One set will be designated as the cover/search team
and the other set a position of dominance. Which set becomes the
cover/search team and which becomes the position of dominance
will be dictated by the side which contains the most immediate
threat, based on the principle of danger close (closest in
proximity to the members).
Room Clearing
Once the determination has been made, the cover/search team
will begin to clear their area while the position of dominance
will hold, covering down on the room, or secondary threats. The
cover/search team is exactly what its name implies, one officer
searches while the other officer covers, or protects. This is
accomplished by the searching officer systematically clearing
their side of the room along the perimeter. While this is being
done, the cover officer acts as a shield by attaching
him/herself to the searching officer in order to protect them
from any angle within the room as they proceed. The cover
officer (shield) should not become concerned with the area being
searched; each officer‘s safety is dependent on the other, which
results in a mutually supportive technique. The cover/search
team will continue in this fashion until they clear the entire
area, or come to a choke point where they are unable to proceed.
If this occurs, each team will change responsibilities, whereby
the cover/search team holds in place and becomes the position of
dominance and the position of dominance team now becomes the
cover/search team. Once the entire area has been cleared, the
initial
foothold has been established and the officers will stack on the
next point with the lead officer(s) in a tuck & duck position.
Footholds
Once the initial foothold has been established, officers move
systematically and fluidly through the structure establishing
―footholds‖ along the way. Each time a new area is secured it
becomes a foothold. These footholds are then used as a base of
operations and may be occupied for as little as a few seconds in
order to clear the area and determine the next move, or an
indeterminate amount of time for; planning, reconsolidation,
reloading, triage, a base for negotiations or any other measure
necessary to complete the mission. Whichever the case, footholds
are transitional areas used while continuing to clear the
structure.
If the structure continues to link rooms together, the team
will continue to advance in the same fashion as previously
mentioned, taking the structure one area at a time. If they
encounter a hallway, with multiple rooms attached, they must
systematically eliminate each room as they proceed along the
corridor. The team does not have the luxury at this point of
stacking outside each doorway and observing/orientating
themselves to each room as they did at the initial entry
(breach) point. Hallways and stairways are considered danger
zones as they are channeling areas that leave the team exposed
and vulnerable to attack. It is at this point that the team must
determine which area they will proceed to next (based on
dangerclose), move to it and enter dynamically while still
maintaining cover on the hallway and remaining rooms. Once
inside the room, the team members will revert back to the
methods previously mentioned, however the position of dominance
has been reduced to one officer because we have diverted another
member (Shield officer) to maintaining security on the
hallway/door, known as the ―Shield‖.
Note: If this is being accomplished with three officers, one
officer (shield) will hold the hallway while the other two
officers make entry into the room. The officers entering the
room will initially position themselves to either side of the
door just inside the room. After a brief orientation, a decision
must be made as to which side is to be cleared first (dangerclose)
at which point both officers will join together and form a
cover/search team. These two officers will remain together until
the entire room has been cleared. At that point they will check
back up to the officer holding the hallway.
If the officers are going to clear a room that is on the same
side of the hallway, they will form a line as they exit the room
along the wall that is closest to the entry point. Each officer
in the line (stack) will cover deep front on their approach to
the next entry point while the ―shield‘s‖ primary area of
responsibility is to cover and ―shield‖ the entry team from the
first opening to the opposite side of the entry point. Upon
reaching the entry point, the shield will release from the first
person in the stack (number one) and position him/herself in
place where they can best shield the team as they make entry.
The ―number one‖ will redirect from deep front upon reaching the
threshold and focus into the room. As the number one
enters
into the room, he/she will break either left or right. The
remaining members in the stack will also check off and enter
into the room moving to the opposite direction of the person to
their front (Principle of fill from rear). Once all members have
entered the room the ―shield‖ will then enter the doorway and
―tuck & duck‖ on the leading edge of the door. While the entry
team establishes who will be the ―cover/search‖ team and who
will be the ―position of dominance‖, the ―shield‘s‖ primary area
of responsibility remains the first opening to the opposite side
of our entry point, but also has secondary areas such as down
the hall and rearguard.
While officers are searching the room, the officer who is
holding the hall (shield) is doing so from a ―tuck & duck‖
position. This is done for several reasons: (1) So they present
a smaller target, (2) That when the other officers check backup
to the doorway they are able to position themselves over the top
of the door officer (shield); providing better coverage of the
hallway and allowing the second officer to orientate to where
they are moving next, (3) As a visual cue: When the door officer
(shield) stands up, it tells the other officers in the room that
the team is moving to the next entry point. In other words, the
train is pulling out and everybody better be onboard, if not,
this must be immediately communicated, before the train pulls
out.
The shield, along with providing protection to the entry
element as they move from point to point, determines where the
team will move next (danger close) and who will be the shield
and who will be the number one going into the next room/area. By
making these assessments, while the other members are completing
the search of the room, the team is able to maintain a degree of
fluidity while clearing the structure. When a team of officers
becomes comfortable with these tactics, the only words that need
to be communicated from the first person checking up after
clearing the room and prior to movement are: ―Where are we going
and what do you need.‖ A possible response from the ―shield‖
would be: ―Clear right, cover left.‖ ―I‘m the Shield, I need a
One.‖ The first (closest) officer would then reply, ―I‘m the
One, stack on me.‖ This would indicate to the other members that
the team would be clearing a door/area to the right and that the
―shield‖ would be providing cover to the left. Everyone in the
stack would know where they were going and what their
responsibilities were based on their position in the stack and
no further instruction would be necessary. However, during
initial training, officers are encouraged to assist one another
in making determinations of direction of movement and
assignments until the techniques become familiar.
This is the basis of LineBackin. There are other tactics and
principles that must also be covered in order for officers to be
successful during a building search, some of which we have
briefly discussed, such as; danger close, fill from rear,
contact/cover and others we have yet to discuss. If officers can
master these skills, prepare themselves mentally and be properly
equipped, we have done arguably all that we can to deal with
circumstances which are beyond our control and which place us at
a disadvantage in our most dangerous encounter.
The fact remains; if armed, motivated and determined
individual(s) have occupied
a
structure and are willing to kill police officers to escape,
they will in all probability do so. However, just how many
casualties we take may be minimized by the use of proper team
tactics and techniques. Officers must go into these situations
with the proper mindset, training and equipment if there is to
be any chance of success. Normally, these types of situations
are handled by highly trained and equipped officers (SWAT), but
the days of securing a perimeter and waiting for those types of
officers to respond have, by and large, passed their time. In
today‘s economy departments everywhere are doing more with less.
At the end of the day we are all police officers, who professed
an oath to protect and serve, whenever and wherever that may be
and by so doing we must commit ourselves as officers, trainers
and administrators to be prepared to the greatest extent
possible.
About the Author: Dan Danaher is a
Sergeant with 22 years of law enforcement experience. He is
currently assigned as the Training Coordinator for his agency.
He is a former Marine Non-Commissioned Officer, where he served
as a Rifleman, Scout/Sniper and Marksmanship Instructor. Dan
also served in the Persian Gulf, on the USS Okinawa and Mobile
Sea Base Hercules in Operations Earnest Will and Prime Chance,
during the Iran/Iraq War. Prior assignments/duties include:
Patrol, Special Operations Unit, Motor Officer, Range Master and
Narcotics & Surveillance Bureau. Dan was also the former Senior
Team Leader for the Western Wayne Special Operations Team with
over 18 years of SWAT experience as both a Sniper and Entry Team
Leader. Contact Dan through www.tacticalencounters.com.
By Derrick D. Bartlett
Reprinted from The
International Law Enforcement Educators and Trainers Association
(ILEETA)
Your shift has been quiet to the point of being boring. You‘re
driving around, thinking about what you want to do on your days
off, and watching the minutes tick by, one at a time.
The alert tone snaps you out of your driving trance. ―Accident
with injuries,‖ is broadcast, and you realize the address is
only a few blocks away, so you answer up to take the call. You
pull up to a stop sign along the way. You stop; look left,
right, and then left once again. All clear, you start to pull
out into the intersection. The sound of a motorcycle slamming
broadside into your patrol car sounds like an explosion.
You drive a car every day, both on the job and in your personal
life. You know the rules of the road, and you know there is a
need to yield to oncoming traffic. How could you not see a
motorcycle coming straight toward you?
You and your partner have been dispatched to another domestic. A
husband and
wife have
been going at it all evening, and one of the neighbors finally
called it in. While in route, Dispatch updates the call,
advising the wife has now called, claiming her husband has
threatened to kill her. He can be heard in the background
yelling obscenities. You anticipate the worst now, and pick up
the pace.
You arrive on the scene and, as you start toward the front
door, a female comes out. You can‘t quite make out what she‘s
yelling, but she is very animated and is pointing back at the
door. The sound of the screen door draws your attention in the
direction of an agitated male descending the stairs and heading
your way. He, too, is yelling and waving his arms. But in his
right hand, you see a dark object. Almost simultaneously, you
have his full attention, and he has yours. You watch as his hand
swings up, and points at your face. You instinctively move left
to the cover of a tree and draw your sidearm. You yell to him,
―Drop your weapon, now! He pauses briefly, but doesn‘t drop the
object. You press the trigger, once, twice, three times, and you
see the male stagger, and then fall sideways.
Suddenly, the world goes quiet. For the first time, you can
clearly hear what the woman is saying. ―He‘s calling the police
on me. He say‘s I pulled a knife on him. I don‘t have no knife.‖
You‘re aware your backup has arrived, when he brushes past you
and closes in on the man on the ground. You leave cover and
follow him. The man is still clutching the object, and your
partner‘s flashlight illuminates the cordless phone. The world
around you stops.
Every moment of your life, you make decisions based on the
information you receive from your senses. How fast can you
access and process it? Do you trust that information to be
accurate? Are you missing important details? How could this
affect your life, job and safety?
Did you shoot this man because he pointed a phone at you?
Why did you shoot him? I‘m sure your initial answer would be,
―because I thought he had a gun.‖ But you didn‘t shoot him
because you thought he might have a gun. You shot him, because
you thought you saw a gun, and you reacted to that information
accordingly. But the reality is, you were betrayed by your
training, experience, and hardwiring. And you are not the first
officer to fall prey to this visual dynamic. Nor, unfortunately,
will you be the last.
The culprit in this, and situations like it, is called
Perceptual Blindness, and it affects everyone, to varying
degrees. In your line of work, the effects, literally, can mean
the difference between life and death.
Police officers, like many in the general public, share
several misconceptions about seeing. They believe they see
everything going on around them. If something out of the
ordinary occurs, they are sure they will notice. They trust that
everything they see is an accurate representation. And they
believe everything they see is recorded somewhere in their brain
and can be recalled at will. All are wrong.
There is a difference between vision and seeing. Vision is a
passive sense. Light is reflected off objects around us and
picked
up by the
rods and cones inside the eyes. There, the light is transformed
into electrical impulses, which are transmitted along the optic
nerve, to the visual cortex of the brain. This is an ongoing,
unconscious process.
Perceptual Blindness
In the brain, those impulses are processed, and through a
comparison and recall process, refined into the images that
construct the world around us. This is seeing. And because
seeing takes place in the brain, this is where the phenomenon of
Perceptual Blindness begins. Perceptual Blindness has been
studied extensively in the scientific community for decades.
Only now is it finding practical application in fields like
police work. For a profession in which observation skill plays
such a critical role, understanding this is extremely important.
Perceptual Blindness affects everyone, to varying degrees and,
because of conditioning and neurological hardwiring, you are
contributing to the problem. It is a breakdown in the complex
visual recognition cycle and manifests itself in several ways:
Inattentional Blindness:
The scientific definition is the inability to detect unexpected
changes or movements, to which we aren‘t paying attention.
Because seeing requires attention, being the least bit
distracted can cause you to miss information your eyes are
sending to your brain. One can literally look at something and
fail to see it. This could be a weapon in the hand of a suspect
or a vehicle approaching an intersection.
Change Blindness: The
failure to notice large changes across different views of a
scene, especially if the change occurs during an extraneous
disruption of visual continuity, such as a rapid eye movement, a
blink, or a distraction. Ironically, some of the tactics we have
been teaching in building clearing and firearms training
inadvertently exaggerate this situation.
Cognitive Blindness: Seeing
is closely tied to recognition and memory. In observation, many
times, the brain will take shortcuts, physically accessing a
limited amount of visual input, then relying on memory and
experience to fill in the blanks. As a result, people often see
only what they expect to see, even if it isn‘t really there, or
what they were looking for, and not recognizing otherwise
obvious things.
This is what caused the officer in our second scenario to
shoot a man armed with a telephone. Between the radio traffic,
his experience, and the actions of the wife and husband when he
arrived, the officer intellectually came to the expectation that
the husband would be armed. He saw an object in the husband‘s
hand, but allowed his mind to fill in the missing details and
made the assumption the object was a gun. The power of this
assumption is so strong, he will convince himself her saw a gun.
The officer‘s reaction from that point on would be
understandable. Over the years, officers have shot suspects
holding phones, lighters and wallets, firmly believing they saw
a gun. (Of course, the public, the media, and in some cases, the
officer‘s own agency, doubt the testimony of the officers
involved. After all, ―How could anyone mistake a phone for a
gun?)
So, what
does this mean to you on the job? Basically, Perceptual
Blindness affects every aspect of your professional and personal
life. You gain about 80% of your sensory input through your
eyes. Therefore, you rely very heavily on fast and accurate
visual information. So, driving your car safely, during routine
operations and especially during expedited runs like pursuits,
you depend on your sight. Every day, hundreds of traffic crashes
occur in which the parties say, ―I didn‘t see the light,‖ or ―I
didn‘t see the other car.‖ Ever wonder how someone could miss a
two ton vehicle coming right at them?
During your daily duties, observing people, reading body
language and nonverbal cues, taking reports, or collecting
evidence, your observation skills play a major role. How much
important information do you miss, every single day?
In lethal confrontations, your ability to see, and accurately
process visual input in high-speed, will define that thin line
between life and death, between a justified shooting and a
tragic event.
Beyond the direct effects on officers on the street,
understanding the peculiarities of vision should be taken into
considerations in other areas of law enforcement.
Officers aren‘t as adept at multitasking as they would like to
think. If accidents are to be avoided, driving of patrol cars,
especially during expedited responses, requires more focused
attention. Splitting attention between listening to the radio,
trying to read the MDT screen, watching traffic and chatting on
your cell phone (no kidding, I‘ve seen it done), is a recipe for
disaster. All of these ancillary tasks impair sight and
recognition, by limiting the brain‘s ability to process visual
information.
Tactics for building searches and room clearing need to be
reevaluated. Are we teaching officers to execute gross eye
movements, when they do things like quick peeks and rapid visual
sweeps of a room? If so, we are programming them for failure. By
teaching them to focus on certain things, we are inadvertently
reinforcing the tendency to overlook other, equally important
things.
This should also exact more parsing and closer scrutiny of
eyewitness accounts, both those of crime victims, bystander
witnesses, and police officers. This is not meant to imply that
these people are intentionally fabricating stories. Instead,
research and experience has shown people see less than they
think, and much of their ―recollection‖ is really a construct of
their brain, not their eyes.
Courts, investigators, the general public and the media need
to be taught the dynamics of vision, and how stress can affect
perception, reactions and recall. Officers have often been
doubted when giving accounts of shootings. Clarity and accuracy
of perception are impaired, in most people, under the best of
circumstances. Being in a deadly force encounter can seriously
compromise the visual abilities of even trained officers.
In deadly force situations, officers are required to
accurately process visual information, at high speed. Failure to
do so can lead to a delay, or a bad decision, which may cost an
officer his life. Unfortunately, there are very few mechanisms
in place
which
train officers to see in high speed. And few agencies are taking
advantage of that training.
In tactical circles, the phrase ―attention to detail‖ gets
lots of use, but what does that mean, in terms of practical
application? Police officers have often referred to themselves as
―trained observers,‖ but in reality, what kind of training have most
of them had? They are taught in the academy and during in-service
training to look for certain things. Watch the hands, look for
certain behaviors, and be on the lookout for a particular car or
person. Perhaps they have participated in various kinds of Kim‘s
Games, (often mistakenly referred to by the incorrect acronym, Keep
In Memory System). These work more on developing recall skills, but
don‘t really teach officers how to see.
There is an axiom in the visual training arena, ―There is no
perception without attention, and no attention without training.‖ A
training program, currently being taught around the country, teaches
students the mechanics of vision and seeing. Then, it uses a variety
of innovative exercises and visual acuity drills to teach them how
to access visual information in increasingly larger blocks, quickly.
The program is not a one-shot inoculation against the problem of
Perceptual Blindness. It is a progressive program, which relies on
repetition, over an extended period of time, to help rewire the
visual process in the student‘s brain. For those willing to stick
with the training, results have been impressive. Officers come away
with the ability to see more, in greater detail, with greater recall
and increased accuracy. This allows officers to do their jobs safer
and better.
The bad news is, training can‘t make the problem go away
completely or forever. Maintenance of the learned skills will be
necessary. Seeing requires focused attention. It is simply
impossible to maintain a high level of focus on everything going on
around you, all of the time. A person would find himself overwhelmed
by the sensory input or worn out by the effort. Even with training,
as soon as a person allows his concentration to lapse, it is very
easy to slip back into the preexisting visual habits. Training is
designed to teach the officers how to see, by increasing their level
of awareness. The ultimate goal of the training is to elevate an
officer‘s day-to-day awareness, helping him to see more, faster.
Traditional training in law enforcement has focused on the
fundamental skills, like driving, report writing and use of force,
but it has neglected to address perhaps the most important
foundation skills. Vision and observation are tied to every aspect
of police work. While we take it for granted that we are naturally
good observers, this is not true. To make police officers safer and
more effective in all areas of their professional expertise, they
must receive specialized training in how to see.
There are a few trainers who are developing innovative
programs to address this issue. Unfortunately, most officers and
agencies are unaware of the scale of the problem, and even fewer are
aware of the training programs. Considering the potential impact
Perceptual Blindness has on law enforcement officers every day, this
has to change quickly. Careers, reputations and lives are all
hanging in the balance.
Reprinted from
WWW.PATC.COM
Rental Cars, Unauthorized Drivers and the 4th Amendment
November 2011
by Brian S. Batterton, Attorney
2011
Brian S. Batterton, Attorney, PATC Legal & Liability
Risk Management Institute (www.llrmi.com)
On March 16,
2011, the Third Circuit Court of Appeals decided United
States v. Kennedy [i], which addressed the issue of
whether a person who is not listed on a car rental
agreement, and is therefore an unauthorized driver,
possesses a reasonable expectation of privacy in the car
such that they can object to a search of the car. The facts
of Kennedy, taken directly from the case are as
follows:
Following the
arrest of two minors in connection with stolen firearms,
Detective Quinn of the Coatesville City Police Department
received information indicating that some of those firearms
had been sold for money and drugs at a home on First Avenue
to a man known as "Tex" and later identified as defendant
Kennedy. Police subsequently obtained a warrant and searched
the home on First Avenue, where they found guns, drugs, and
personal effects belonging to Kennedy. A federal warrant was
issued for Kennedy's arrest on January 18, 2006.
Six days
earlier, on January 12, 2006, Kennedy's girlfriend Courtney
Fields had rented a silver Toyota Camry from Kulp Car Rental
and given the key to Kennedy, who used the car until January
18, 2006. Kennedy's name was not listed on the rental
agreement.
On January
18, a police informant who knew Kennedy notified Detective
Chris McEvoy that earlier in the day he had seen Kennedy
driving a silver Toyota Camry, the car Fields had rented, on
Chestnut Street between 7th and 8th Streets. McEvoy then
passed this information on to the day and evening shifts of
the Coatesville Police Department. Later that evening, at
approximately 9:00 p.m., Officer John Regan, Corporal Sean
Knapp, and Sergeant Martin Brice encountered Kennedy—wearing
black gloves and carrying in his right hand a rental key
inscribed with the Kulp Car Rental insignia and listing the
car it belonged to as a silver Toyota Camry—walking
diagonally across Chester Avenue and down the hill toward
East Lincoln Highway. The officers placed Kennedy under
arrest pursuant to the warrant. They then searched Kennedy
and found on his person $2,692 in United States currency, a
set of keys, and four cell phones. The District Court later
determined that Kennedy was a validly licensed driver.
After Kennedy
was taken to the police station, Officer Regan asked him
where he lived. Kennedy said he lived at 714 East Lincoln
Highway, a house less than a block from the location of the
arrest. Officer Regan went to that location and soon found a
silver Camry on Chester Street with a Kulp Car Rental
bracket around its license plate. In the meantime, Sergeant
Brice spoke with Kulp Car Rental's owner, who requested that
the police tow the car to the police station. While Officer
Regan waited for a tow truck, three people approached the
car from East Lincoln Highway, at which time Officer Regan
instructed them to move away from the vehicle. The man and
two women continued up the street to a house where they
watched Officer Regan and the car from the front porch and
window. One of the three was Courtney Fields, Kennedy's
girlfriend and the person who had rented the car and given
Kennedy the key.
Following the
car's impoundment, Detective Martin Quinn directed Corporal
Scott Neuhaus to conduct an inventory search of the car
pursuant to Department policy so that the vehicle could then
be picked up by someone from Kulp. Corporal Neuhaus began
the inventory search with the trunk, where he found a
partially opened duffle bag containing a disassembled rifle
in three pieces. He immediately stopped the search and spoke
with Detective Quinn, who then sought a search warrant for
the entire vehicle. That same day, at her request, Fields's
attorney informed the police that there could be drugs in
the car.
On January
20, 2006, Detective McEvoy and Detective Sean Murrin
received a federal search warrant for the vehicle. Inside,
the detectives found a cell phone charger plugged into the
dashboard cigarette lighter, and a second cell phone charger
in the passenger compartment, each of which fit one of the
four phones found on Kennedy at the time of arrest. The
detectives then opened the locked glove compartment and
found a semi-automatic handgun, a magazine containing around
30 rounds of ammunition, and a plastic bag containing
smaller bags with an off-white chunky substance later
confirmed to be 202 grams of cocaine base. [ii]
Kennedy was
subsequently indicted on federal drug and gun charges. He
filed a motion to suppress the search of the rental car. The
district court denied his motion and held that the search
was initially conducted as part of a lawful impoundment and
inventory of the vehicle under department policy. He was
later convicted of the charges and he appealed the denial of
his motion to suppress to the Third Circuit Court of
Appeals.
Thus the
issue before the court was whether a person who borrows a
rental car but is not an authorized driver under the rental
agreement has standing to challenge a search of the rental
car (in other words, has a reasonable expectation of privacy
in the car under the Fourth Amendment).
In support of
his contention that he should have standing and a reasonable
expectation of privacy, Kennedy points to the United
States v. Baker[iii], in which the Third Circuit held:
[T]o determin[e]
whether someone who borrowed a car had a reasonable
expectation of privacy in it, a court must conduct a
fact-bound inquiry assessing the strength of the driver's
interest in the car and the nature of his control over it.
[iv] [internal quotations omitted]
In Baker,
the defendant borrowed his friend’s car. Thus, the defendant
in Baker was driving the car with the permission of
the owner. As such, the court made a “fact bound inquiry”
and determined that Baker did possess a reasonable
expectation of privacy in the car he borrowed from his
friend.
As to the
applicability of Baker to the facts of Kennedy’s
case, the court of appeals stated:
[Baker] does
not speak to the distinct factual scenario presented here:
whether someone who has been given permission to drive a
vehicle by its renter, without the knowledge of its owner
and in contravention of the rental agreement, nevertheless
has standing to challenge a search of that vehicle.
Accordingly, we disagree with Kennedy that Baker
augurs in favor of any particular outcome here. [v]
As such, the
court of appeals examined cases from other federal courts of
appeal, noting that the Fourth, Fifth, Sixth, and Tenth
Circuits have held that in a scenario such as Kennedy’s, the
unauthorized driver did not possess a reasonable expectation
of privacy in the rental car. The court of appeals stated:
[R]ecognizing
that the inquiry must remain "fact-bound," we concur with
the majority of circuits that have considered this factual
scenario and conclude that, as a general rule, the driver of
a rental car who has been lent the car by the renter, but
who is not listed on the rental agreement as an authorized
driver, lacks a legitimate expectation of privacy in the car
unless there exist extraordinary circumstances suggesting an
expectation of privacy. See, e.g., United States v.
Seeley, 331 F.3d 471, 472 n.1 (5th Cir. 2003) (per
curiam) (finding that driver of rental car lacked standing
where he was not the renter or authorized driver); United
States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994)
(holding that unauthorized driver of rental car who had been
given permission to drive by co-defendant, an authorized
driver, lacked standing); United States v. Roper, 918
F.2d 885, 887-88 (10th Cir. 1990) (defendant lacked
standing where car he was driving was rented by
co-defendant's common law wife and he was not listed as
additional driver in rental contract); cf. United States
v. Smith, 263 F.3d 571, 586 (6th Cir. 2001) (noting that
"as a general rule, an unauthorized driver of a rental
vehicle does not have a legitimate expectation of privacy in
the vehicle" but nevertheless finding that the defendant had
standing in light of the "truly unique" facts of that case).
[vi]
On the other
hand, the Third Circuit, noted that the Eighth and
Ninth Circuits have held that the unauthorized driver of a
rental car has standing when the renter gives the driver
permission to use the vehicle. [vii] The Third Circuit then
examined the facts of the Ninth Circuit case, the United
States v. Thomas. In Thomas, a known associate of
Thomas rented a car, only listed himself as the driver, and
then lent the car to Thomas. The Ninth Circuit, in holding
that Thomas had standing to challenge the search, analogized
his case with various cases that have held a person who
rented a car or a motel room, who keeps possession of the
car or motel room, after the lease or rental agreement
expires, still retains a reasonable expectation of privacy
and standing to challenge a search. [viii]
The Third
Circuit, in examining the Ninth Circuits reasoning in
Thomas, stated:
[The Ninth
Circuit] concludes that the two types of breach should be
treated the same for purposes of determining whether there
is a reasonable expectation of privacy. The persuasiveness
of the analogy breaks down, however, when one considers the
different risks that each type of breach creates for the
property owner, the different precautions that owners take
to protect against each breach, and the corresponding
differences with which society is likely to view those
breaches. The risk of additional harm to or loss of leased
property is likely to be small and easily quantifiable where
the lessee merely maintains possession of the property past
the expiration of the lease agreement. Indeed, because
normally the expected loss will merely increase in
proportion to the amount of time that the property is being
used, the owner can easily seek compensation for this breach
of the lease by charging an additional pro rata fee based on
the amount of additional time that the property is used.
[ix]
Further, the
court noted that the United States Supreme Court has
generally afforded a greater expectation of privacy in homes
or living quarters than in automobiles. [x] The Third
Circuit then stated that they believe society considers a
person who validly rented a car but returned the car late is
quite different from a person who is not authorized by the
rental car company to possess or drive the car. The court
then stated:
[W]e join the
majority of circuits in concluding that the lack of a
cognizable property interest in the rental vehicle and the
accompanying right to exclude makes it generally
unreasonable for an unauthorized driver to expect privacy in
the vehicle. We therefore hold that society generally
does not share or recognize an expectation of privacy for
those who have gained possession and control over a rental
vehicle they have borrowed without the permission of the
rental company. [xi] [emphasis added]
As such,
Kennedy lacked a reasonable expectation of privacy in the
rental car and therefore did not have standing to challenge
the search. Further, the court of appeals, like the district
court, also held the search was lawful as a valid impound
and inventory.
The court did
find it important to note that there is a possible exception
to the general ruled noted above. As an example of this
exception, the court examined the United States v. Smith
[xii] , from the Sixth Circuit. In Smith, the
defendant reserved a rental car in his name and used his
credit card to do so. The defendant’s wife then picked up
the vehicle and was the only authorized driver listed on the
rental agreement. The defendant then drove the vehicle which
was searched and evidence was obtained. The Sixth Circuit
upheld the suppression of the evidence finding that the
defendant had a reasonable expectation of privacy in the
vehicle; they reasoned that, although he was not listed on
the rental agreement, the defendant had a sufficient
business relationship with the rental company and an
intimate relationship with the authorized driver (his wife).
However, the court noted that Smith did not help Kennedy in
the facts of his case.
As such, the
decision of the district court was affirmed.
__________________________________
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] 638 F.3d
159 (3rd Cir. 2011)
[ii] Id.
at 161-162
[iii] 221
F.3d 438 (3rd Cir. 2000)
[iv] Id.
at 162 (quoting Baker, 221 F.3d at 442)
[v] Id.
at 164-165
[vi] Id.
at 165
[vii] Id.
at 166 (citing United States v. Thomas, 447 F.3d
1191, 1198-99 (9th Cir. 2006); United States v. Best,
135 F.3d 1223, 1225 (8th Cir. 1998); United States v.
Muhammad, 58 F.3d 353, 355 (8th Cir. 1995))
[viii] Id.
(citing citing United States v. Henderson, 241 F.3d
638, 647 (9th Cir. 2000), as amended Mar. 5, 2001 (lessee of
rental car has reasonable expectation of privacy even after
expiration of agreement, as long as he maintains possession
and control of the car); United States v. Dorais, 241
F.3d 1124, 1129 (9th Cir. 2001) (expiration of motel room
rental period, in absence of affirmative acts by lessor to
repossess, does not automatically terminate lessee's
expectation of privacy); United States v. Cooper, 133
F.3d 1394, 1398-1402 (11th Cir. 1998) (renter has reasonable
expectation of privacy even after rental car lease has
expired); United States v. Owens, 782 F.2d 146, 150
(10th Cir. 1986) (motel guest maintains a reasonable
expectation of privacy in motel room even after check-out
time)).
[ix] Id.
at 166-167
[x] Id.
at 167
[xi] Id.
at 167-168
[xii] 263
F.3d 571 (6th Cir. 2001)
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