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December 2011

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in this issue . . .

 

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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.


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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.

 

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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.

 

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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.

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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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