People sleep peaceably in their beds at night because rough men stand ready to do violence on their behalf. -George Orwell

Investigating Issues of Intent

 
by John Reid & Associates

Two recent news events have centered around a person's intentions. The first was the shooting of Trayvon Martin by George Zimmerman. The second was a White house correspondent named Neil Munro who was accused of heckling President Obama by interrupting the President's speech.

Neither individual is denying the primary accusation; George Zimmerman openly acknowledges shooting and killing the unarmed victim. President Obama's news conference was televised and Mr. Munro does not deny that he is the reporter yelling out questions while the President was speaking. Yet both individuals are denying guilt because of lack of intent. Zimmerman stated that he believed his life was threatened and he acted properly under the "stand your ground" legal doctrine. Munro stated, "I timed the questions believing the president was closing his remarks because, naturally, I have no intention of interrupting the President of the United States."

In presenting their explanations, both Zimmerman and Munro may appear plausible and credible. However, unlike behaviors, which are concrete and fixed in time, a person's intentions often represent a personal cognitive assessment that can be manipulated with time and motivation. Under this circumstance, a person's exhibited behavior symptoms may serve as a poor indicator of credibility.

To be sure, some claims relating to legal intent directly involve specific behaviors such as a man claiming that he shot his neighbor in self-defense after the neighbor first fired a gun at him, in which case he would know if he was telling the truth. However, many of these claims are based on subjective cognitive assessments such as personal perceptions, beliefs, or claiming lack of knowledge. When a suspect's claim of lack of intent starts with the statement, "I thought", "I believed", or, "I felt", the investigator is dealing with a cognitive assessment.

To illustrate the difference between behaviors and cognitive assessments, consider a hit and run where a pedestrian was struck and killed. The owner of the vehicle denies driving at the time of the collision. This represents a behavior. He certainly knows whether or not he was driving and, consequently, whether or not he is lying or telling the truth.

But let's change the facts where the owner openly acknowledges driving the vehicle at the time of the collision, but states that he is not legally responsible for the pedestrian's death because the pedestrian walked right out in front of the vehicle and the collision was unavoidable. This explanation represents a cognitive assessment by the driver. In his mind, of course, he will perceive the collision as unavoidable and therefore, that the explanation is a truthful statement. This internal belief will persist despite the fact that the driver knew he was speeding, trying to find a decent station on the car radio and talking on his cell phone at the time of the collision.

Behaviors can be proven through evidence. Fingerprints or DNA can directly place a person at a particular location, surveillance video can show a person engaging in a particular behavior and biological evidence can prove that two individuals were sexually intimate.


However, intentions often can only be inferred. A homicide suspect may claim that a gun discharged inadvertently resulting in the victim's death; a fraud suspect may state that at the time he wrote the check he believed there were sufficient funds in his account to cover the check or a man may claim the he believed the girl whom he had sexual relations with was 18 years old. These types of claims, typically made by suspects implicated by overwhelming evidence, each involve cognitive assessments which cannot be directly proven or disproved. Rather, the investigator can develop investigative information that may reveal the suspect's claim to be improbable, e.g., that a death was probably not accidental considering that the gun was fired three times.

With this in mind, the first lesson when investigating issues of intent is to appreciate that assessing the credibility of a person's stated intentions through behavior symptom analysis may be quite misleading. A better approach to assess the true intentions behind a person's actions is through factual analysis. In other words, the investigator will attempt to support or refute a person's stated intentions by identifying behaviors and events surrounding the incident, as well as evaluating the person's propensity to form wrongful intent.

To illustrate, consider a woman caught shoplifting a pair of sunglasses. A loss prevention investigator observed the woman place the sunglasses on top of her head and leave the store. When approached, the woman appeared confused and bewildered, and explained that she had fully intended to pay for the sunglasses, but forgot that they were on top of her head.

If the woman placed the sunglasses on her head and shopped for another 20 minutes before going through a checkout line to purchase 12 other items in her cart while casually talking to the cashier, her explanation is fairly credible. Further, if the woman was a regular customer who was elderly and had occasional episodes of forgetfulness the explanation becomes even more credible.

However, if the woman was seen carrying the sunglasses in her hand and, after noticing long check-out lines, placed the sunglasses on her head and briskly left the store, her explanation does not sound very credible. Add to this the fact that the woman lived in a different community and had no reason for shopping at that particular store and had three prior convictions for shoplifting, her explanation becomes even less credible.

To develop information for factual analysis the investigator should ask questions that address specific behaviors ("What did you do", "When did you do it"). Anything falling outside of normal behavior should be followed up with "why" questions, e.g., "Why did you wait 30 minutes to report the shooting?", "You already have 4 pair of sunglasses why did you want to buy a fifth?"

In addition, questions that address propensity (behavioral tendencies) should be asked. While propensity does not prove guilt, it can go a long way in establishing a person's true intentions. The following questions each address propensity:

"How many times have you shoplifted merchandise from a store?"
"Have you been questioned about shoplifting from a store?"
"Have you been convicted of shoplifting ?"
"Has anyone ever approached you asking you to (engage in crime)?"
"Have you thought about (committing crime)?"

For reasons previously discussed, "Did you intend to ..." type questions may not reveal valid behavior symptoms. However, this issue can be addressed by asking questions pertaining to the suspect's knowledge. Addressing a person's recent knowledge is a more concrete concept, and a better gauge of credibility, than addressing that person's intentions. The following are examples of questions that address the suspect's knowledge:

"When you went to the store that day, did you already have a plan in mind to steal a pair of sunglasses?"
"When you put those sunglasses on your head did you already have a plan in mind to walk out of the store without paying for them?"
"When you walked past the cashier, did you know the sunglasses were on top of your head?"

Finally, conversations or communication with others may provide useful insight about the credibility of a suspect's explanation for behaviors. This is particularly true if it is established that the suspect changed his stated intention at some point in time, e.g., initially the driver said the sun glare caused him not to see the pedestrian but now claims the pedestrian ran out in front of him. Examples of questions that address communication include:

"Did you tell anyone that (you purposefully engaged in behavior)?"
"Did you send any emails indicating that you (purposefully engaged in this behavior)?"
"Did you leave any voice mails indicating that you (purposefully engaged in this behavior)?"
"Did you write in a note or diary that you (intentionally engaged in this behavior)?"
"Did you change your explanation for why (incident happened) at any point in time?

Finally, an investigator needs to distinguish between intentions and motives. Criminal intent may or may not be required to satisfy the elements of a particular charge. Establishing the true motive behind a crime rarely is an element required to prove guilt. In fact, many guilty suspects mentally distort the true motive behind their crimes. For example, it is not necessary that a child molester acknowledge receiving sexual gratification through his sexual contact with the victim. It is likely that the molester has convinced himself that the contact with the victim was to express love and affection. In the eyes of the law, it makes no difference to the judge why the suspect had sexual contact with the victim, the defendant is still guilty of child molestation.

In conclusion, not all claims relating to lack of criminal intent involve cognitive assessments. However, when dealing with those that do, behavior symptoms of truth or deception are less valid and may be quite misleading. Rather, the best means to assess the credibility of these claims is through factual analysis. To accomplish this, the investigator needs to elicit information surrounding the crime to establish a probability estimate that the stated intention is credible. In particular it is productive to ask follow-up "why" questions, questions that develop propensity and questions relating to communications by the suspect.

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 800-255-5747 or www.reid.com.

 

Get In There Now

Exigent Entry Tactics for Patrol Cops 

Reprinted from Law Officer

By R.K. Miller

Webster's Dictionary defines exigency as "A case or situation that demands prompt action or remedy; emergency or plight." While Webster's is certainly not a law enforcement tactical manual, the above definition clearly fits our needs, because when challenged with getting into a location under exigent circumstances, patrol officers must consider a number of issues.

In an exigent-circumstance entry, there are six basic areas of concern: legal, weapons handling, approach, entry, contact with suspects and the aftermath.

Legal

Today, case law in one form or another dictates that law enforcement personnel can only enter a location with a legal warrant, consent or exigent circumstances. In the latter, the issue of imminent danger to life per the U.S. Supreme Court case Brigham City, Utah v. Stuart gives police officers a legal right and obligation to act. This concept is an exception to the Fourth Amendment, and clearly refers to when officers must enter a location to save lives due to ongoing violence. Exigencies involving hot pursuit and destruction of evidence are covered in the U.S. Supreme Court cases Warden v. Hayden and United States v. Santana.

Weapons Handling

In case you didn't realize it, making an exigent-circumstances entry into a location definitely falls into the realm of a tactical response regardless whether SWAT officers or street cops are involved. Let's review some critical weapons-handling issues. Basically, you should apply the cardinal rules of firearm safety to tactical operations.

• Never assume a weapon's condition. We all should know by now the standard interpretation of this rule, but to modify it for our purposes here, it also means you should ensure a weapon is properly loaded and ready. Instructors at Gunsite preach, "Always take a loaded gun to a gunfight." In addition, when appropriate, make sure the firearm is off safe. In case you haven't heard it before, "Duh stands for dead" if your gun is not properly loaded or still on safe when you try to fire it.
• The Master Grip: Keep your finger off the trigger and out of the trigger guard until you make a conscious decision to use lethal force. In a tactical response, the adrenaline dump you experience may be significant. It can only get worse if you ignore this basic rule. In a worst-case scenario, it may lead to a weapon s unintentional discharge that wounds or kills another officer or innocent civilian.
• The Laser Rule: Never allow the muzzle of your weapon to cover anything you don t intend to destroy. In an exigent-circumstances setting, observing this rule is very important. Especially in an active-shooter, immediate-response situation, with innocent, panicked civilians moving close to officers, we must exercise caution with our firearms as we search for the suspect. In some cases, it may even be wise when confronting a potential suspect who is not yet perceived as armed to cover down with the firearm adjusted slightly to the left or right of center mass. This technique will ensure an unintentional discharge will not hit someone you did not intend to use lethal force against. If the suspect does produce a weapon, you only have to shift the muzzle laterally to immediately respond.
• Be sure of your target and beyond. This final rule reflects the fact that you must shoot what you know, not what you think. This means ensuring you engage a hostile subject whose actions justify the use of lethal force.

Approach

When you approach a building s exterior, you must remember the suspect inside has a tactical advantage (looking out is a lot easier than looking in). With that in mind, using some form of ballistic protection and developing at least a tactical response or hasty plan are essential elements for an approach. As you begin to plan your approach, make looking for points of cover a priority. Before going forward, think about how you will move from one point of cover to another. As one officer moves, another should provide cover and shoot if necessary to protect fellow officers. For example, when officers move across the front of a residence trying to get to a better vantage point before entering, direct one officer to remain behind, use cover, focus on the location and prepare to respond to any suspect actions, including lethal force. This officer can then move up once the others have reached a new position from which they can now act as cover officers.

Beyond the use of cover, the overall approach should be part of a hasty plan. The overall goal of the hasty plan is to gain access, rescue any innocent citizens and deal with the suspect as necessary. This does not have to be complex. In fact, in such situations, it s better to use simple steps to solve the problem. A hasty plan does require that communication between those directly involved remains relevant and ongoing.

As part of the hasty plan, officers look for possible points of entry, keeping in mind that the most accessible door such as a front door may not be the most tactically sound (a suspect inside may intuitively recognize the same fact and anticipate officers coming in through that door). If an alternate entry point is available, seriously consider using it instead depending on the circumstances at hand.

Example: Let's say exigent circumstances require officers to quickly yet safely enter a multi-story office building and proceed to a floor several floors above them. Taking the elevator directly to that floor may not be the best option. Instead, consider riding the elevator to an alternate floor either above or below the suspect s location. You must look at related factors when weighing such a decision, such as stairwell access (e.g., are doors on each floor locked, preventing access from the stairs?), the amount of time the tactic takes and the location s size. At the very least, the responding officers should be prepared for a number of possibilities, including the need to engage a suspect as soon as the elevator doors open.

Entry

Moving through a doorway is a critical process. The path through a doorway begins with reading the door itself. If it's an exterior door, pay attention to a number of factors. Ideally, you've identified these factors and made them part of the tactical awareness before moving up to the door. They include:

• Door orientation: Does the door open in or out? Look at the hinges and doorknob, and remember that local building codes often dictate that residential doors open in and doors on commercial structures open out. In addition, in many structures (especially homes) a short wall extends from the hinge side of the door, leaving a relatively small amount of wall space between the hinges and a wall that runs perpendicular to the door. This means the majority of the room will be straight ahead and off to the side opposite the hinges.
• Door features: What's the door made of? If it's an interior door, it may be relatively easy to force open as opposed to a sturdier exterior one. Recognize that suspects can shoot through the door if they want to. Does the door include door locks, peep holes or windows either built into the door or alongside it? A glass door, such as at a business or a fast-food restaurant, offers both positive and negative aspects we can see in, but the suspect can see out.

After you've assessed the door, you can prepare to make entry. Obviously, if the door is already open, part of the problem has been solved. However, if the door is closed, take care in getting it open. First determine if the door lock is engaged. If it is, some form of forced entry will be necessary unless you can find alternative entry points.

Once the door is ready, remember that if an armed suspect is inside, opening it may draw hostile fire. Therefore, open the door from one side or the other rather than standing in front of it. Then, instead of immediately entering, wait to see what response, if any, this action draws.

When the door has been opened, consider using the tactically proven cutting-the-pie technique to visually clear as much of the interior as possible before stepping inside. If you observe suspects during this process, order them out to your location rather than going in after them because the suspect may not be alone. The one-plus-one rule of tactical work is in play here (i.e., if you think there s one suspect present, always plan for at least one additional suspect you aren't aware of). Second, you are entering the suspect s territory. Ordering a compliant suspect out which I will discuss in greater detail shortly is more tactically sound under such conditions.

If you must enter a room, use the six-step "First-Officer-Crosses Method" described on the attached PDF found at the end of the article.

Contact

If there is a suspect inside the location, at some point you will have to take him into custody. There are variations, depending on whether you've used lethal force. If so, the need to get handcuffs on the suspect is a priority, but should be done with some caution. Use a contact-and-cover approach, in which at least one officer—the cover officer—watches the suspect, ready to use force if necessary, while other officers—contact officers—move to take the suspect into custody. The contact officers may want to take some precautionary steps first, such as planning the best approach to the suspect and avoiding a route that blocks the cover officer s view and field of fire. Other proactive steps should include preparing handcuffs before going hands on, planning for extra officers to help control the suspect s arms (especially the right because most people are right-handed) and even gloving up. Before touching a suspect who is bleeding, take steps to protect yourself from bloodborne pathogens, such as HIV and Hepatitis C.

As mentioned earlier, if a compliant suspect is in a room and you order him out, give thought to the mechanics of taking him into custody. It would be best to order the suspect out to your position of strength. To do this, contact and cover remains a good solution one officer gives instructions while the other covers. In this way you define responsibilities and can avoid the confusion often created when multiple officers give possibly conflicting instructions.

The contact officer should decide how they want the suspect to exit the room: facing the officers or away, standing, on their knees, or on their stomach. When possible, I prefer for the suspects to exit crawling on their stomach for numerous reasons, starting with officer safety. A suspect on the floor does not obstruct visibility as much as one who stands or kneels. In addition, it's relatively easy to control and handcuff a suspect who is face down on the floor with their hands behind them. Finally, gun lines will be down into the floor in the suspect s direction rather than into the room, making missed shots less likely to injure an innocent person or fellow officer.

Aftermath

Clearly, after an exigent circumstance you will need to address additional issues, including the need to protect the crime scene, evidence collection, the care and safety of any innocent involved citizens (especially hostages), and eventually, proper documentation. I won t discuss these issues in detail, but officers should do their job professionally with a mind toward the prosecution of those responsible.

A final point focuses on care of our own. Officers facing a worst-case scenario such as the Columbine tragedy may require some form of trauma support to deal with post-traumatic stress disorder. Under such circumstances, proactive police agencies should have procedures in place to take care of their personnel.

Conclusion

As police officers, an exigent-circumstance event can be one of the worst situations we ever face. To successfully deal with this challenge, it will take courage, common sense and good tactics. Hopefully, this article will give you at least a starting point to consider as you think about how you will respond when and if you get the call to start rolling.

   

 
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