Newsletter - Policetraining.net

By John E. Reid & Associates

Each year in the United States hundreds of thousands of polygraph examinations are administered. The primary value of the polygraph technique is to eliminate innocent suspects early during an investigation. This greatly assists an investigation in that investigators can focus their efforts on other suspects. When a suspect is identified as deceptive, frequently the suspect will confess during an interrogation that follows the polygraph examination. While this may sound like a positive finding, it is not because it encourages incompetent examiners to use the polygraph instrument as a psychological prop to elicit confessions.

Properly administered, the polygraph technique is a non-accusatory diagnostic procedure that allows an examiner to collect physiological data to infer whether or not a subject is telling the truth to relevant questions (see August web tip). Accusatory interrogation has no place in a properly conduced polygraph examination (Reid and Inbau, Truth and Deception the Polygraph "Lie-detector" Technique, Williams and Wilkins, 1977). Unfortunately, the private environment and intimate relationship an examiner forms with a subject during a polygraph examination creates an ideal breeding ground for a confession. This factor is significant enough that some state supreme courts have ruled that taking a polygraph examination is so inherently coercive that any confession made during the course of a polygraph examination should be suppressed. It should be understood that a confession obtained during an interrogation following a polygraph examination is accepted in all states.

Since the polygraph is not a lie-detector, its usefulness during an investigation is entirely dependent on the competency of the examiner. A competent examiner will be accurate in determining truth or deception approximately 90% of the time (based strictly on chart analysis). This figure will increase if the examiner incorporates other means of detecting deception such as behavior symptom analysis. The competent examiner will be unable to render a definite opinion of truth or deception in about 10% of subjects examined. An examiner who boasts of an accuracy rate above 95% and an inconclusive rate less than 5% should be avoided.

Training in the polygraph technique can range from two to six months of instruction. The best training programs include not only the basic class-room instruction, but an internship period as well. During this internship the student's charts and procedures are carefully scrutinized to develop clinical skills. Following this training and obtaining a license, if required, competent examiners will join a professional organization such as the American Polygraph Association or the Association of Police Polygraphists.

An important part of an examiner's training is to identify those subjects who are at risk for producing erroneous results. The ideal subject is one of average, or above average intelligence, who is not mentally impaired and is in reasonably good medical health. It is also important that the subject's emotional state is relatively stable during the examination. A leading cause for false positive results (reporting a truthful subject as deceptive) is anger within the subject. This anger may be caused by prior interrogation or an accusatory pre-test interview. Inadequate development or selection of control questions is another cause for false positive results.

False negative results (reporting a deceptive subject as innocent) may be the result of improper question formulation in which relevant questions are phrased in such a way that they do not present a significant threat to the guilty person. Subjects with a lower intelligence may also increase the risk of a false negative result. In some cases, a guilty subject may engage in countermeasures that the examiner fails to recognize during chart analysis. Identifying countermeasures is a critical part of a competent examiner's training. In our office almost 25% of guilty suspects are identified primarily because of their use of countermeasures. Innocent subjects allow their body to respond normally during a polygraph examination. It is the guilty subject who will consciously try to manipulate the polygraph recordings. In this regard, agencies should be very cautious when using an examiner who relies exclusively on computer analyzed charts. None of the software developed for this purpose is capable of identifying specific subject countermeasures.

Another aspect of a competent examiner's training is to identify unsuitable subjects. Generally speaking, children under the age of 14 are not suitable for the polygraph technique. Subjects with significant mental disorders, such as diminished mental capacity or symptoms of detachment from reality are often not suitable for the technique. The subject's mental state is also an important consideration. Fatigue, intoxication, anguish and trauma may each render a subject unsuitable for the polygraph technique.

Without a doubt, however, the greatest risk for erroneous polygraph opinions is outside pressure. Agencies place tremendous pressure on polygraph examiners to obtain findings consistent with predetermined expectations. There is pressure to form an opinion in every case and, when a subject produces deceptive polygraph results, to obtain a confession from that subject. For these reasons the position of a polygraph examiner should be somewhat autonomous from other agency functions. The personality of the examiner should be such that he or she is an analytic thinker and possess a great deal of self-confidence with little interest in pleasing others or advancing in rank through politics.

With this background, the following are recommendations for the proper use of the polygraph technique during an investigation:

Only use a well-trained, competent examiner;

Use polygraph examinations early during an investigation when there are multiple suspects with opportunity, access and motive;
For legal reasons, do not use the polygraph as a ruse to get a guilty suspect into a controlled environment merely to conduct an interrogation;
Avoid engaging in accusatory interrogation if the suspect may be willing to take a polygraph examination;
Accept the examiner's opinion that a particular subject is unsuitable;
Do not place pressure on an examiner for a definitive opinion -10% are inconclusive;
If practical, have a second examiner "blindly review" polygraph charts to verify the original examiner's opinion;
Do not rely on an examiner to solve your cases with a confession. The technique should serve as a diagnostic investigative aid to establish a person's truthfulness.

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.

The critical need for "Immediate Action Rapid Deployment" in school invasions

By Rick Armellino
Baker Ballistics, LLC

The nightmare scenario

Two armed men carrying handguns and knapsacks reportedly have entered a local elementary school. You are the closest responding patrol asset.

What will YOU do?

Upon your arrival, what happens next greatly depends upon the policy of the law enforcement agency that signs your paycheck. What you would do if your child was in this school may be vastly different than what your department expects you to do. Here’s a few of the most common patrol first responder actions:

1. Not hearing any gunfire, establish an outer perimeter to prevent escape and call for backup.

2. Hearing gunfire, wait for the predetermined amount of officers to arrive, make a plan, and enter the structure in accordance with your agencies’ active shooter response procedures.

3. Whatever you want, as your agency has no formal policy, training or equipment.

Historical background

Statistically, shootings have killed far more children at school than fires. Hundreds of millions of dollars are spent protecting school children from the threat of fire, while minimum training and resources are devoted towards protecting them from gun violence. For those who do not believe that school massacres are a realistic threat, there have been over forty documented school shooting rampages, the great majority of them occurring in the United States, beginning back in 1966.

The phenomenon of the suicidal killer has steadily increased in both frequency and victims. In addition to homegrown deranged predators, the U.S.-based radical Islamic terrorist cell now must be considered a credible threat to the safety and well being of our school-age children. It is well known that Al Qaeda leaders and followers consider American schools prime targets of opportunity. They know that a traditional delayed tactical entry following a period of protracted negotiation allows ample opportunity to stage the planned massive final carnage after the arrival of the worldwide media.

Containment & negotiation tactics at school: A deadly policy

Recent history has proven that the traditional police first responder tactic that requires the establishment of an outer perimeter while waiting for backup usually assures that the planned death of innocents will occur when the intruder is homicidal and suicidal. It is a common law enforcement belief that most armed school invaders probably wish to live and escape, and that aggressive actions initiated by first responders could “set them off”, and make the situation worse. Nothing could be further from the truth.

The decision to utilize containment and negotiation as automatic “default” tactics when the intruders’ motivations are not known is extremely risky, especially when innocent children are the potential victims. In the case of a homicidal and suicidal individual, waiting for them to go active and begin killing must not be the signal to begin aggressive pursuit and containment. By then, it is too late.

Every armed and hostile individual entering a public area must be considered to be homicidal and suicidal, unless credible information is known to the contrary. This knowledge cannot be quickly ascertained from a distance. The more time an aggressive police approach takes to happen, the longer the armed intruder has to control the environment and work their plan, the bolder the predator will become and the more unlikely a bloodless outcome is to occur.

From the moment an armed, homicidal and suicidal predator enters the building, the end plan is known only to them. In the case of a school intruder, they usually do not plan to leave the building alive. Nor do they plan on dying alone. It becomes the duty of the first responder to interrupt this murderous plan to minimize carnage at the earliest possible moment.

In the case of a terrorist school takeover, any delay of the first responder to actively engage the intruders will guarantee that ultimately, many innocents will die due to the delayed aggressive response. The sound of gunfire will not be heard upon arrival of the patrol officer, it will be eerily quiet as the terrorists gather children into a central location and set up bobby traps to slow down future rescuers. We know this, and so do the terrorists.

Law enforcement policymakers who do not allow first responders discretion and encourage them to approach armed school invaders are not delivering the quality of public safety their citizens deserve. In a dynamic school invader situation, first responding patrol officers are likely the only people on scene early enough to save innocent lives. But only when they are authorized, trained and equipped to do so.

Patrol-level “Immediate Action Rapid Deployment” (IARD): An effective aggressive tactic

The sooner first responding officers can establish close physical proximity to a homicidal and suicidal individual, the quicker the incident comes to a conclusion. In the majority of cases, these psychopaths kill themselves as soon as police gain close proximity, abruptly ending the carnage. Swift, aggressive contact is the key to interrupting a deadly plan of mass murder. An active shooter being pursued by police during a running gun battle is better than allowing the predator unlimited mobility and time to accomplish their planned murderous activities.

Recently, an off-duty officer in a large Salt Lake City shopping mall, armed with only a handgun successfully chased and cornered a well armed active shooter into a side alcove, interrupting the rampage and restricting his mobility. Responding on-duty officers were swiftly able to back-up the off-duty officer and kill the shooter. Prior to the running gun battle with the pursuing off-duty officer, nine innocents had been shot and five died. Not one additional citizen was shot after the shooter focused his attention towards this aggressive and heroic officer!

A note on modern equipment now available for patrol-level IARD

During the nightmare scenario of an armed school intruder, every second counts. Police administrators must consider empowering, training and equipping patrol officers to conduct “Patrol IARD” if the modern delivery of public safety and the saving of innocent lives is the goal.

The advent of the lightweight Baker Batshield^® portable ballistic shield has made this patrol operation possible with a minimum of training. An amazing balance of first responder speed, accuracy, and ballistic protection has been achieved. First responding patrol officers now have the ability to utilize progressive Immediate Action Rapid Deployment (IARD) tactics by approaching armed individuals prior to, or during active shooter emergencies. Public safety is delivered in accordance with public expectations.

Visit www.bakerbatshield.com for complete information, including live-action video demonstration.

Rick Armellino is the Director and Chief Executive Officer of Baker Ballistics, LLC., the manufacturer of the Baker Batshield® personal ballistic shield. He has over thirty years experience in the body armor industry, including Director of Research and Development and President of American Body Armor and Equipment, Inc. Rick's body armor designs have saved over forty American LEO's from death or serious injury during attacks by gunfire. Recently, Rick has partnered with noted ballistic shield trainer, Lt. Al Baker (NYPD, ret.), to advance the concept of Immediate Action Rapid Deployment (IARD) tactics for use by first responders in the approach to armed and hostile individuals in public places.

As public school officials attempt to combat the problem of illegal drugs at school, the use of police drug sniffing canines is becoming more prevalent. It is well established that canine sniffs of lockers and parked cars do not constitute a "search" under the Fourth Amendment.[i] However, in some situations, the facts leading up to the use of a canine may implicate the Fourth Amendment by constituting a seizure of a person or property prior to the use of the canine.

On March 5, 2010, the Court of Appeals of Texas (Austin) recently decided In the Matter of D.H.[ii], which dealt with such an issue. The facts of D.H. are as follows:

In October 2006, officers from the Austin Police Department arrived at Reagan High School to conduct a canine search of the school. D.H., who was sixteen at the time, was a student at the school. Assistant Principal Mike Perez led the officers through the school, allowing the dog to sniff several classrooms on each floor of each building. For every inspection, Perez entered the classroom and informed the teacher of the sweep. The students were then instructed to leave their property in the classroom and wait in the hall, and the police entered and allowed the dog to sniff the items left in the room. The students were not allowed to refuse the instructions or to take their items with them. When the officers searched D.H.'s classroom, the dog reacted to her backpack. The officers called D.H. into the classroom, read D.H. her rights, and searched her bag, where they found a small bag of mariJuana. [iii]

D.H. filed a motion to suppress with the trial court alleging that her bag was seized without reasonable suspicion when she was required to leave it in the class while the canine conducted a sniff of all bags in the room. The trial court denied the motion to suppress.

D.H. appealed and argued (1) her backpack was seized for Fourth Amendment purposes when she was required to leave it in the class and (2) the seizure was not supported by reasonable suspicion since neither the officers nor school official had a reason to believe that she was engaged in a school rule or law violation. [iv]

The Court of Appeals of Texas (Austin) first examined some general rules regarding searches and seizures in schools. The rules are as follows:

Although probable cause and a warrant are generally required before law enforcement may conduct a search, a search unsupported by probable cause may be reasonable 'when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. [v] [internal quotations omitted]
Although students in public schools do not shed their constitutional rights . . . at the schoolhouse gate, their constitutional rights are not automatically coextensive with the rights of adults in other settings, and must be considered in view of the school environment. [vi] [internal quotations omitted]
The public-school context requires a relaxed standard of reasonableness because insisting on "the warrant requirement would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed,' and 'strict adherence to the requirement that searches be based on probable cause' would undercut 'the substantial need of teachers and administrators for freedom to maintain order in the schools. [vii] [internal quotations omitted]
In determining whether a search or seizure of a student or her property conducted was reasonable, we first consider the nature of the implicated privacy interest, then consider the character of the intrusion, and finally consider the nature and immediacy of the government's concerns and the efficacy of the [school's action] in meeting them. [viii] [emphasis added]
[T]he Supreme Court has expressly refused to impose a requirement of "individualized reasonable suspicion of wrongdoing" on schools' attempts to prevent student drug use. [ix]

The court of appeals then declined to decide whether or not D.H.'s bag was seized within the meaning of the Fourth Amendment; rather, the court stated that they would assume the seizure occurred (since a seizure occurs if there is meaningful interference with a person's possessory interest in property) and decide the case based upon whether such a seizure of D.H's bag was reasonable in the public school setting.

Thus, the issue before the court was whether the seizure of D.H.'s bag by requiring her to leave it in her class while a conducted conduct a sniff of all bags in the class was reasonable under the Fourth Amendment as applied in the school setting.

The court then applied the facts of D.H.'s case to the rules above. The court stated that to determine whether the seizure of the bag was reasonable, they would use the three part test from the rule above (see fourth bullet point) and examine (1) the nature of the implicated privacy interest, (2) the character of the intrusion, and (3) the nature of the schools concerns and the efficacy of the seizure in addressing those concerns (drugs). [x]

Thus, the court first examined the privacy interest that was frustrated by the seizure of D.H.'s backpack. In light of the fact that students have a somewhat lessened expectation of privacy at school and are sometimes subjected to greater control than adults in a public environment, the court stated

considering that D.H.'s backpack was not opened, nor were its contents examined, until after the dog alerted on it, and bearing in mind the control and supervision that school authorities must properly exercise in their roles as guardians and tutors of their students, we hold that restricting D.H.'s ability to take her backpack with her implicated a relatively minor privacy interest. [xi][emphasis added]

Second, the court of appeals considered the nature or type of infringement of D.H.'s privacy rights. The court noted that the students were removed from the class and only the police officers and the assistant principal were in the class at the time of the canine sniff. As such, there was no likelihood that D.H.'s backpack was likely to be stolen and there were no other students around that may embarrass D.H. The court then stated

Given the method employed in conducting the canine inspection and the minimally intrusive nature of the inspection, we hold that the invasion of D.H.'s privacy was not significant. [xii] [emphasis added]

Last, the court of appeals considered the nature and immediacy of the government's (schools) concerns and the efficacy of the seizure of D.H.'s bag in meeting those concerns. The court noted that, in previous cases, the United States Supreme Court has stated that there is an important or perhaps compelling government interest in preventing drug use by schoolchildren. [xiii] The assistant principal testified that he knew there was a drug problem at the school because school officials have found marijuana being sold at school as well as children returning from lunch under the influence of drugs. The assistant principal also said that drugs at school are a serious safety issue due to belligerent behavior as well as dangerous physical reactions. He also said that the school officials were always on the lookout for drug use. Additionally, students and parents sign off on the student handbook which contains the school policy prohibiting drugs at school. The court then stated

Considering the low level of intrusion on D.H.'s limited privacy rights and the evidence about the drug problem at Reagan High, we hold that the seizure effectively addressed the problem of student drug use and served the important governmental interest in protecting the students' safety and health. [xiv] [emphasis added]

In light of analysis of the three part test to determine if the seizure of the bag was reasonable, and in light of other court precedent from other jurisdictions [xv], the court held that the brief seizure of D.H.'s bag by requiring her to leave it in her class as a canine conducted a sniff, was reasonable under the Fourth Amendment in a public school setting.

________________

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.

SEE RELATED ARTICLES:

Georgia Court Upholds Canine Sniff During Traffic Stop

U.S. Supreme Court Upholds Canine Sniffs of Vehicles

Locker Searches and use of K9's