in this issue . . . Vehicle Searches   Non-Custodial Interviews     Fitness and Sleep   Contact And Cover

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U.S. Supreme Court places new limits on vehicle searches incident to arrest

by Rob Garver, Editorial Director of AssetForfeitureWatch.com - website for law enforcement officials about asset forfeiture.

A Supreme Court ruling this Spring placed considerable limits on the ability of a law enforcement officer to search a vehicle once a suspect is under arrest, overturning a 28-year-old precedent that, according to a slim 5-4 majority, had led to "routine constitutional violations."

The case, Arizona v. Gant, is expected to have a significant impact on asset forfeitures that arise from motor vehicle stops, and will require significant retraining of active officers, veteran law enforcement officials said.

The case arose from an arrest in Tucson in 1999. Rodney Gant was arrested by patrol officers for driving on a suspended license. After Gant was handcuffed and secured in the back of a patrol car, the officers conducted a search of his vehicle and found a gun and, in the pocket of a jacket on the back seat, a bag of cocaine.

Legality of search questioned
Facing charges for the cocaine, Gant challenged the legality of the officer's search of his car, claiming that laws governing searches made incident to arrest did not allow a search in his case.

The Arizona Supreme Court agreed with Gant, and the case was appealed to the United States Supreme Court, which upheld the decision.

The majority decision, written by Associate Justice John Paul Stevens, overturns a long-held precedent. The majority found that searching the passenger compartment incident to an arrest is legal in only certain circumstances

For such a search to be legal, there must be either 1) The possibility that the arrestee or another party could gain access to a weapon or to destructible evidence in the vehicle, or 2) A reasonable expectation on the part of the officer that evidence related to the offense for which a suspect has just been arrested might be found in the vehicle.

Conditions not met

In Gant, the majority found that neither condition was met. At the time of the search, Gant was handcuffed in the back of a patrol car and had no possible access to the interior of the vehicle. Additionally, as he was arrested on a motor vehicle charge (driving on a suspended license), the officers could have had no expectation that they would find evidence related to the crime in his car.

Cameron Holmes, a senior litigator with the Arizona Attorney General's Office and himself a former police officer, said that the impact was likely to significantly reduce vehicle searches as a whole, but might have the unintended side-effect of increasing arrests.

He pointed out that in many traffic stops, an officer has significant discretion. He or she can release an arrestee with a citation, or can take an arrestee into custody. If a suspect leaves the scene of the arrest under police custody, the vehicle will be towed and will be subject to an inventory search.

Possible side-effects
"The ripple effect is going to be that people who would have been let go are going to be taken down and booked for the purpose of searching the car if that is what the officer wants to do," Holmes said.

Deputy Travis Pierce, with the Maricopa County Sheriff's Department in Arizona, said he expected widespread retraining would be necessary to assure that officers across the country understand and comply with the new ruling.

While his department does a significant amount of asset forfeiture work, said Pierce, little of it is tied to vehicle stops, so he doesn't expect the ruling to significantly affect the level of seizures the Sheriff's Department makes.

"But for departments that are out on the roads a lot, like the Arizona Department of Public Safety, or the Texas Highway Patrol, it might affect them," he said.

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Arranging a Non-Custodial Interview By John E. Reid & Associates During our training seminars we advocate that if the option is available it is preferable to conduct a non-custodial interview rather than a custodial interview. To persuade a guilty subject to voluntarily agree to present himself at the investigator's location for an interview requires that the interview be introduced in the proper manner. A past case clearly illustrates an improper approach: A business owner suffered a theft of $2000 from a deposit bag that was left in a back office. Seven employees had access to the stolen money. The owner called a meeting of these employees and announced that if the person who stole the money came forward by Monday there would be no prosecution. On the other hand, if no one came forward all employees would be subjected to lie-detector tests and when the guilty person was identified, he would be prosecuted to the full extent of the law. Needless to say, no one came forward and confessed. When the polygraph examinations were scheduled several of the employees refused to take the examination, which was their legal right, and the case was never solved. Because of a general lack of insight to human behavior, the business owner unknowingly created a situation which almost guaranteed that the employee who stole the $2000 would not be detected. The following guidelines are offered to assist an investigator, or business owner, to encourage suspects of a crime to voluntarily agree to be interviewed: Guideline #1: Never threaten a subject with possible consequences if he is involved in the crime, or if he does not show up for the interview. It is psychologically wrong to remind a subject that if he cooperates with the investigation he may well be convicted and go to prison. Most people who commit crimes are chance-takers. They will generally accept the risk of cooperating with an investigation unless the presented stakes are so high (threatened prosecution) that they out-weigh the risk of cooperation. Secondly, it is legally improper to threaten the subject with possible arrest, or some similar tangible consequence, if he fails to agree to be interviewed. A subject who presents himself for an interview in order to avoid being arrested (or keep his job) is hardly answering questions voluntarily. Guideline #2: Present the interview in a positive light. To understand this guideline it is appropriate to ask, "Why would any person guilty of a crime agree to take a polygraph examination or agree to be interviewed by the police?" There are two basic reasons. One is that the person is afraid that his refusal to cooperate will make his guilt more apparent. A second reason, and one that applies to many guilty suspects, is a need to maintain full personal control of one's destiny; this translates to the guilty suspect's drive to "beat" the polygraph or to lie convincingly during an interview. To feed this belief the investigator should present the interview as a means by which the subject can be cleared from suspicion. Most certainly, during an invitation to be interviewed a subject should not be told that there is strong evidence implicating him in the crime. To the contrary, the intimation should be that the subject's name came up peripherally during the investigation. In some situations an altruistic appeal may be effective, where the subject is told that because he knows some of the people in the investigation his insight would be very helpful. In the previously mentioned employee theft case, a much different outcome may have resulted had the employer stated, "I realize that it is unlikely that any of you took the money but to obtain reimbursement from my insurance company they are asking that you all take a polygraph examination." Guideline #3: Imply that others also have been, or will be interviewed and avoid discussing specific evidence against the suspect. A guilty suspect is unlikely to appear voluntarily for an interview if he believes that he is the prime suspect and, therefore, the only person to be interviewed on the case. Under that circumstance, in his mind, the proposed interview is nothing more than a ruse designed to elicit a confession. Similarly, the phrase, "We would like you to come downtown to answer routine questions" should be avoided. If the questions were routine, they could be asked at the present time. On the other hand, by stating that others also will be or have been interviewed allows the guilty suspect to feel comfortable cooperating with the interview procedure because he is surrounded by other possible suspects. Avoiding any mention of evidence pointing to the subject permits the guilty subject to believe that there is no solid evidence against him and that the interview is a mere formality of the investigation. Guideline #4: Be prepared to explain why the interview must be conducted at your location. Given a choice, most subjects would prefer to be interviewed in a familiar surrounding such as their home or place of business. This environment, of course, is often not conducive for the investigator. One way around this dilemma is to contact the subject by phone to set up the interview in the investigator's office. However, telephonic communication does not have the same persuasive effect of talking with the suspect directly. During a face to face invitation for the interview the investigator should have a prepared response to offer when the subject suggests that the interview be conducted at the present time. Some excuses to consider for scheduling the interview in the investigator's office may be that your partner needs to be present, you do not have the case file with you, or that a departmental policy requires that investigative interviews be conducted in your office. The following dialogue incorporates these guidelines and is designed to obtain the cooperation from the subject to show up at a scheduled time for a non-custodial interview: I: "Rick, we are looking into the incident last week where that school girl was shot by someone in a car. During the course of our investigation, we have developed a number of leads and people's names. Yours was one of them." S: "Alright." I: "What we have done is to schedule these people for interviews to eliminate them as possible suspects. In fact, everyone who has come in for their interview so far we've been able to eliminate. What we're hoping is that one of these people will have seen or heard something that can help us out. Would you mind coming to our office for an interview?" S: "Well, I don't know. Why don't you just ask your questions now because I don't know anything about that." I: "When we have direct evidence pointing to a person we will interview them in their home. But we're at an early stage of the investigation so all I'm doing today is arranging interview times. I've got three people to schedule after you. Now you work until 4:00 is that right? S: Yeah. I: "I'm wondering if you could make it by 4:30 tomorrow afternoon." S: "How long will it take?" I: "The other interviews have lasted less than an hour." S: "Sure. I'll be there by 4:30." I: "Great, we'll see you then." As a legal consideration, it is certainly preferable for the subject to arrange his own transportation to the investigator's office. A subject who is transported to the office by the investigator is somewhat limited in his ability to freely leave the office area. If the subject is transported to the office by an investigator it will be important for that investigator to remind the subject that he is there voluntarily and is free to leave at any time.

  

Fitness in Mind, Body and Spirit

by Joe Truncale

Law enforcement officers often work strange hours, which can interfere with sleep patterns. Many officers work extra

jobs and fail to get enough sleep. New research has shown that a lack of sleep can be a serious health risk. The following tips may help you sleep better:

• Make sure that any medications you take are not affecting your sleep pattern. Check with your doctor on this issue.

• Try to have a regular schedule when you go to bed and when you wake up. This sets up a formation of good sleep habits.

• Don’t smoke, because nicotine may affect your ability to sleep peacefully. * Avoid eating large meals just before bed time.

• Keep your bedroom cool, dark and comfortable. * Have some calm and relaxing music playing before going to sleep.

• Avoid drinking alcohol before going to sleep.

• Avoid exercising less than three hours before going to sleep. Do your exercise and workouts in the morning or early afternoon rather than in the evening.

• Avoid daytime naps if they are interfering with your sleep at night.

• Meditate to relax yourself before going to sleep.

• See your doctor if you have a continuous problem with getting enough sleep.

— contact Joe at JoeTruncale@ileeta.org
http://www.ileeta.org/

 

You Make the Call…

with Larry Smith

 

Mission: This column is to give you information that starts you thinking about answers to typical police problems and sometimes offer solutions.

Contact and Cover Revisited

Did you ever hear about the Contact - Cover principle? It was September 14, 1984, when Officer Tim Ruopp was cruising Grape Street Park in San Diego, CA. He saw two men and two under-age girls drinking liquor in a parked car. He investigated and called for backup. Ruopp began to cite one of the men, Victor Casillas, for contributing to the delinquency of a minor. Officer Kimberly Tonahill arrived and Ruopp instructed her to cite the other man, Joselito Cinco. Unknown to the officers Cinco was armed with a 9-mm automatic pistol in a shoulder holster. When Tonahill began doing a pat down search of Cinco, he shoved her backwards, pulled his gun and began firing. She died from a fatal shot between the side panels of her ballistic vest.

Cinco turned the gun on Ruopp and began firing. Cinco then shot the officers several times again while they lay on the ground. Ruopp died two days later from a fatal gunshot wound to the head.

Officer Gary Mitrovich was patrolling near by when he heard shots fired. He entered the park and engaged in a shoot out with Cinco. Mitrovich was shot in the shoulder and Cinco had part of his ear shot off in the gun battle. Cinco fled into the underbrush of the park but was later captured without incident. Casillas and the girls were released when it was determined that they were not principals in the shooting. Cinco was convicted of murder and later hung himself while in custody.

This incident was analyzed by a group of officers to determine if it could have been prevented. The primary finding was that two officers were involved in different tasks and no one was watching their back. Lieutenant John Morrision, San Diego Police Department, developed the concept of ―Contact and Cover‖ and it became the standard safety operational system of the police department. The Contact Officer is responsible for the business of the contact and will usually be the officer who initiated the stop. The Contact Officer will do searches, recover evidence, write the citation and generally assures the thoroughness of the investigation.

The Cover Officer is responsible for surveillance and control of all suspects to minimize the possibility of an assault, escape or destruction of evidence. The protection of the Contact Officer is the Cover officer‘s primary function. In some cases the officers‘ expertise may influence the assigned roles, i.e. the suspect only speaks Spanish and the Cover Officer speaks fluent Spanish. This situation could result in the officers changing roles. It must be absolutely clear who is the Contact Officer and who is the Cover Officer. There may be times when there is more than one Contact Officer and more than one Cover Officer. This is particularly true when there is more than one scene where there are several individuals that are being interrogated. It is very important that the officer who requested backup briefs the Cover Officer thoroughly as soon as this officer arrives.

The Cover Officer should also brief the Contact Officer about any previous knowledge the officer has about the suspect and anything that this officer observed while arriving at the scene. The Contact Officer must be careful not to move between the Cover Officer and the suspect or into a position of vulnerability. This could create jeopardy for both officers. It is a known fact that the most hazardous moment of a contact is during the pat down search and handcuffing.

If a struggle occurs between the Contact Officer and the suspect, the Cover Officer should be vigilant as to whether the Contact Officer is in control or whether he/she is losing control. If it appears that the Contact Officer needs assistance, the Cover Officer should not wait for the Contact Officer to request it, but render aid immediately. Hand signals and verbal commands are an essential ingredient to make this concept a success. You may develop your own set of signals, but they must be consistent within your agency and surrounding agencies.  

Contact and Cover is a procedure that can lead to safer working conditions and fewer assaults on officers. Shouldn‘t your department be adopting this concept? What is your opinion?  Larry Smith is a 34-year veteran lieutenant (retired) from the San Diego (CA) Police Department. He is a judicially recognized expert witness in use of force and police procedures. Larry has instructed arrest and control tactics for the past 40 years. His martial arts training in Aikido and police training has prepared him to understand the mechanics of use of force encounters. Email to larrysmith@ileeta.org.  

 

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