By
John Reid & Associates
Many serious crimes have been solved as a result
of a traffic stop or chance encounter with a police officer:* A
vehicle is stopped for running a red light and it is determined that
the occupants just held up a liquor store or burglarized a
warehouse; a driver is pulled over because of an equipment violation
and, through questioning, the officer learns that the other occupant
in the vehicle is wanted on a felony warrant.** The media use these
stories to show how stupid criminals are.* What the stories really
illustrate, however, is the importance of conducting effective
roadside interviews.
The officer conducting a roadside interview is in
a unique position to develop incriminating information.* Because the
initial stop is for a forfeiture offense, Miranda warnings are not
required.* Most of these stops are the result of probable cause so
the suspect already knows that he or she has been caught doing
something wrong and this awareness makes it easier to acknowledge
other transgressions.* Finally, these suspects are caught off guard
without the opportunity to create a credible alibi or dispose of
incriminating evidence that may be in the vehicle.
While it might be tempting to grill every
motorist pulled over for speeding to find out if he has sexually
molested any children or has a dead body in the trunk of his car,
there are moral and legal restrictions placed on expanding the scope
of roadside questions beyond the initial traffic violation.* For
example, some states have ruled that, without reasonable suspicion,
it is illegal to ask a person pulled over for a traffic violation
permission to search the trunk of his car.
In many of these cases, officers cite "gut
feelings" or "instincts" as causing them to expand the scope of
their questions beyond the initial traffic stop.* These officers
have stopped hundreds of motorists and know what a normal person's
behavioral response is under that circumstance. When a subject
exhibits abnormal behavior, the officer may expand their
questioning.* While John E. Reid and Associates expertise is limited
to behavior symptoms that occur in a controlled environment during a
structured interview, some of those basic principles certainly carry
over to a roadside interview.
It must be remembered that people stopped for
traffic violations are, for the most part, guilty of the offense for
which they were stopped (speeding, equipment violation, failure to
obey a sign, etc.) and will certainly exhibit symptoms of anxiety as
a result of being caught.* In this sense, people stopped for a
traffic violation are "guilty" of the violation.* However, they may
exhibit behavior symptoms of guilt or deception because of
involvement in some unrelated criminal activity or because they lied
to the police officer's questions, e.g., "Where are you coming from?
Whose car is this?"
For the purpose of this article, the terms
"guilt" and "deception" are used to describe subjects who are
involved in something other than the traffic violation for which
they were stopped.* The following are general guidelines that may be
useful to establish reasonable suspicion.* In other words, these are
indications that it may be appropriate to expand the scope of
questioning beyond the initial purpose for the stop
#1*
Nervousness does not equal deception
Especially during the initial contact with a
police officer, most subjects will experience nervousness (hand
tremor, eye blinking, dry mouth).* As a recent incident illustrated,
a subject may appear agitated and anxious because of a medical
emergency.* However, extreme nervousness, or fearfulness that
increases during the course of questioning may be an
indication of guilt to something beyond the initial traffic
violation. Symptoms of extreme anxiety include excessive physical
movement (pacing, crossing, uncrossing arms, constant hand
movements) and mental blocks (inability to recall simple information
like an address or an inappropriate response to a simple question).
#2
Truthful suspects offer reasonable cooperation and are helpful
during questioning.
Subjects with nothing to hide pull to the side
of the road when the officer activates lights and siren; when at
home, they answer the door when the officer knocks on it and respond
to questions without objection.* Conversely, it is a classic symptom
of guilt for a suspect to run from the police in response to an
effort to stop his vehicle or question the suspect at his home.*
During questioning, guilty suspects may engage in
behaviors that are the equivalent of alluding the officer.* The
suspect may be guarded, answering most questions with only a one or
two word response.* A key deceptive behavior symptom associated with
guarded responses is that the suspect does not take time to think
about the officer's question.* Often, these suspects respond to the
officer's questions too quickly or even before the officer finishes
asking the question.
The deceptive suspect may evade a direct response
to the officer's questions or become challenging as illustrated by
the following dialogue
Q "Where are you going this evening?"
A: "Nowhere."
Q: "Where are you coming from?"
A: "What do you mean?"
Q: "Who is in the front seat with you?"
A: "Thatis none of your business."
Q: "What is his name?"
A: "What difference does it make?"
At this point it would be reasonable to pursue
an effort to establish the identity of the passenger and the
subject's whereabouts that evening.
#3
Deceptive suspects are often uncomfortable communicating with their
hands.
Communicating with one's hands (illustrating)
occurs when a person is confident and sincere in his statements.*
Illustrators reinforce the credibility behind the spoken word.* The
lack of illustrators can be a significant behavior symptom of
possible deception.* The classic description of a guilty subject
going through a border stop is that the subject's hands are cemented
to the steering wheel at the 11 and 2 o'clock positions and his eyes
stare straight ahead at the road.* Similarly, when questioning a
child who has done something wrong, the child will hide his hands by
putting them in his pockets.
Truthful subjects use appropriate hand gestures
and will actively communicate with their hands.* These gestures are
not aggressive or threatening, but rather are an extension of
communicating thoughts and information to the officer.** Deceptive
subjects often go through a "freeze" response and shut down
nonverbally.* As a result, their hands do not become involved when
answering questions.
*#4*
Be cautious when considering poor eye contact as an indication of
guilt or deception
There are many non-deceptive causes for an
innocent person to exhibit poor eye contact, especially when being
questioned by a person in authority.* These include culture, a shy
personality, effects of medications and neurological disorders.*
During relatively short encounters, such as a roadside interview,
poor eye contact should not be considered a behavior symptom of
deception unless the officer has specifically established that the
suspect is capable of exhibiting normal eye contact.
The standard procedure to establish a person's
normal level of eye contact is to ask a series of nonthreatening
background questions.* The principle is simple; if a suspect cannot
maintain mutual gaze when answering nonthreatening questions, the
suspect's poor eye contact when answering questions about the crime
should not be considered as an indication of deception.
The difficulty with roadside stops is finding
nonthreatening questions to establish baseline behaviors.* For
example, the following initial questions are fairly standard when a
police officer pulls over a car on a traffic stop:
"Do you know why I have pulled you over?"
"May I see your driver's license?"
"Is the information on your license correct?"
"Is this your vehicle?"
"Where are you headed this afternoon?"
For 99% of motorists, these questions should be
nonthreatening, but if the suspect happens to be driving a stolen
car, driving with a revoked license or has just robbed a bank, the
questions are clearly threatening and the suspect may exhibit poor
eye contact when answering these "nonthreatening" questions.
With so many potential variables affecting a
subject's eye contact during a roadside interview, the officer
should be cautious in using this criteria to identify guilt.*
Certainly, poor eye contact alone should not be used as the sole
criteria to expand the scope of questioning during a traffic stop.
#5
Inconsistent or irrational explanations often indicates deception
There are many factors that influence nonverbal
behavior but a person's words have a single meaning, with the only
typical variables being memory or intelligence.* If a driver tells
you that the car he is driving belongs to his father, the fact that
a check on the car's ownership comes back to someone else is an
inconsistency that certainly requires further questioning.
If a car is pulled over and smells of marijuana
the officer should certainly ask the driver about the smell.* If the
driver anxiously explains that his car was parked near a field where
leaves were being burned and that the leaves caused the smell, this
is an irrational explanation.** Based on this analysis, it would
certainly be appropriate for the officer to ask the driver, "Have
you or anyone else smoked marijuana in this car this evening?"
In conclusion, most roadside interviews are
routine and straightforward.* A car is stopped, a few questions are
asked, a citation is issued and the subject is on his way.* However,
on occasion, the subject of a roadside interview is involved in a
more serious crime or has information that is important to other
on-going investigations.* This web tip offers five guidelines to
determine when routine questions should be expanded to cover
possible involvement in other criminal activity or guilty knowledge.
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.
By Daniel S. Danaher
Tactical Encounters Inc.
TacticalEncounters.com
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 un-predictable occupation, but with the use of better
tactics and teamwork we can minimize how many casualties we take.
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 re-orientate
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 “Line-Backing” and
can be used to clear any type of structure with as little as three
to four officers.
Line-Backing 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 to 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.
Line-Backing 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 low-profile), 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 lay-out 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 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.
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 secured.
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 another 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 un-determinate amount of
time for; planning, re-consolidation, re-loading, 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.
* 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 (danger-close) 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.
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 back-up 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 on-board, 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 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 is: “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 “Line-Backing”. 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.
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.
Daniel S. Danaher,
Executive Board Member, Tactical Encounters Inc.
Dan Danaher
dan.d@tacticalencounters.com
Dan 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.
Dan has been a member of his Department’s Color/Honor-Guard for 20
years.
Dan holds a Bachelor of Science Degree in
Criminal Justice from Madonna University.
He holds instructor certifications in the following areas:
Firearms, Patrol Rifle, Rapid Deployment, Defensive Tactics, Ground
Fighting, Spontaneous Knife Defense, Taser®, Personal Chemical
Agents, Strategies & Tactics on Patrol Stops, SWAT Tactics,
Low-Light Tactics, Confrontational Simulation/Reality Based Training
and Live-Fire Shoot-House.
By Daniel S. Danaher
Tactical Encounters Inc.
Tactical Encounters.com
Headlines:
Missed Pat-down Officer Shot!
How many times have we heard of officers being shot or killed
due to a missed pat-down or search? There have been a number of
reasons why this has occurred; complacency on the part of the
officer, lack of or negative training, poor policy or procedures
when dealing with suspects, or a number of other factors.
Certainly we are not going to win all of these encounters all
of the time, but many of these shortfalls could have been prevented.
By addressing the three C’s (Complacency, Control & Cuffs) we
can begin to reduce some of our losses and turn them into wins.
Complacency
Probably the single most contributing factor to officer assaults and
deaths is complacency.
We see it in almost every facet of our profession.
Whether it’s while driving, traffic/pedestrian encounters,
searching, or training, at some point we begin to become complacent.
Once we allow this beast to seep into our procedural tasks,
it begins to pervade into every aspect of our performance until it
becomes a point of vulnerability.
This is when we see officers lose their tactical edge and
become victim to either active resistance, assault, or worse.
Complacency affects all of us at some point in our careers,
sometimes sooner than later, but it does manage to invade our
mindset and performance eventually and we must be cognizant of it.
Once aware of complacency we must take steps to overcome its
impact and return to a state of vigilance, being constantly mindful
of our surroundings and those in proximity to us.
We must assess the situation from the time the call comes in until
we have cleared the run and we are on to the next.
We do not have a crystal ball to alert us that an assault is
imminent. However, if we
study how officers are assaulted and killed we can see a pattern
which should trigger our intuition and alert us to potential
hazardous situations. If
we were to analyze how officers are assaulted or killed based solely
on a single factor, we could start with the type of call:
Domestic assault, suspicious person/circumstance, traffic
stops, robbery, burglary, disturbance.
Officers handle these types of calls throughout their
careers, sometimes they go well, sometimes not, but regardless, with
each and every call we become a little more confident in our ability
to handle them. Improved
ability increases confidence; confidence unchecked ebbs to over
confidence; over confidence surrenders to complacency.
We
must challenge ourselves daily to do the things that keep us safe;
use of back-up, cover contact principles, solid tactics and
procedures and always alert to the cues of danger.
Our mind guides our actions and when our consciousness slips
so to do our actions.
Control
If possible, before we approach a subject in order to initiate
either a pat-down or full custodial search, we should test the
waters by checking for compliance.
Give the subject some verbal commands and see if they comply;
“Sir, turn around and place your hands behind your back….”
If they are non-compliant at this stage then the officer
should re-assess the situation and determine the next course of
action; call for back-up, de-escalation, or higher level of force,
whichever is reasonable based on the totality of the circumstances
at hand. If they do
comply, we can now make a tactical approach; balanced posture, hands
empty, up and ready to react.
As we make our approach we must keep in mind:
Distance=Time=Control.
As the distance between ourselves and the suspect decreases, so does
the time we have to react and thereby relinquishing some of our
control over to the suspect.
Action is always faster than reaction and therefore our
awareness level must increase with every step we take closer to the
suspect. In the back of
our mind we must have plan “B” & ”C” in place in case the suspect
turns on us. If this
does occur our options at this point is either to move forward and
forcibly gain control over the suspect, disengage, or create
distance. We will either attempt to de-escalate the situation or
respond with a higher level of force, again whichever is reasonable
given the circumstances of the encounter.
We must also be cognizant that as we make our approach, the
suspect remains in a fixed position and looking forward, not turning
their head over their shoulder trying to index our location as we
make our approach.
If the suspect is compliant and the officer is able to make a
tactical approach, the next step is to gain control of the suspect’s
hands (plural).
Too often we see officers move in with handcuffs already
deployed, usually in their strong hand, and try to control or
handcuff a potentially uncooperative individual.
The suspect may have appeared to be compliant when they were
issued verbal commands, only with the intent to draw the officer in
closer and give them a false sense of security.
Once the officer makes the initial contact the suspect
unexpectedly attacks.
Officers need to keep both hands empty in order to first gain
control over the suspect and then, if appropriate, deploy and apply
the handcuffs. Whether
you are going to have the suspect place his/her hands behind their
head or behind their back is not the foremost concern, there are
pro’s and con’s to each method.
What is important is that you establish control of the hands
on your initial contact.
There are a number of different techniques available and I encourage
officers to experiment with several to determine which works best
for them. The
important element is that the suspect is unable to quickly disengage
from the officer in order to escape or initiate an attack.
Once
we gain control of the hands, again we are assessing the suspect for
compliance; are they tensing up, shifting their weight, attempting
to pull their hands apart, or again trying to index us by looking
back? At this juncture
we are ever mindful of plans “B” & “C”.
If we do not encounter any resistance, create some balance
displacement on the suspect by spreading their legs wide apart, or
leaning them back slightly towards you.
At this point you conduct your pat-down or search.
Search techniques vary as well, but whatever method is used, it must
be systematic and methodical.
Generally, it is conducted from the top down and from right
to left because most individuals are right handed and conceal
weapons and contraband on their strong side.
Special attention should be given to the waistband and groin
region, which is often overlooked.
Cuffs
If
it is appropriate and justifiable to handcuff the suspect then by
all means do so.
Officers place themselves at unnecessary risk when they have
the ability to handcuff an individual and for whatever reason
(complacency) choose not to prior to conducting their search.
A simple rule to follow: Arrestable offense= handcuffs.
This may seem elementary to some however, all too frequently
officers will do a cursory pat-down on subjects who are either
arrestable or under arrest.
The aforementioned procedures for controlling a suspect prior to
conducting a pat-down also apply to those individuals we intend to
handcuff and search.
Once we have made our tactical approach, gained control over the
suspect’s hands (plural),
made our second assessment for compliance and established some
balance displacement, now we can deploy and apply the handcuffs.
Once the handcuffs are applied, make certain that you check
the tension and double lock the handcuffs ensuring that they do not
continue to tighten. The
practice of handcuffing persons to their front should be reserved
for rare exceptions and then only after they have been thoroughly
searched. Any officer
who comes in contact with the individual should search again as if
the person had never been searched.
Officers have died because they assumed someone else had
performed a thorough search only to become a victim due to their
assumptions. Just
as any firearm should be inspected by anyone who comes in contact
with it, so to should the suspect because both can end your life in
an instant.
A final note on handcuffs:
Inspect your handcuffs periodically to ensure that the single
bar moves freely within the confines of the double bars, that the
hinge is not rusted or corroded and that the locking mechanism is
functioning properly.
The motto: Stay alert, stay alive is words to
live by. If we strive to
maintain a conscious awareness of the cues to danger, train in
proper control tactics and develop solid procedures when conducting
searches and/or pat-downs, we will win far more encounters then we
lose and we can’t afford to lose anymore of our brothers and sisters
due to complacency and improper tactics and procedures.
Conclusion
Complacency, controlling and handcuffing are all aspects of our
profession. If we allow
complacency to trickle into our tactical procedures, we open the
door to vulnerability and attack.
We must always strive to overcome the temptation of
complacency and the pitfalls that await us if we fail.
Positive training, proper mindset and the prevailing will to
survive will keep you on course.
Assess compliance, be vigilant, gain control before deploying
your handcuffs and remember to handcuff before searching whenever
the opportunity presents itself.
Reprinted from
WWW.PATC.COM
Third Party Consent
by Brian S. Batterton, Attorney
PATC Legal & Liability Risk Management Institute (www.llrmi.com)
United States v. Matlock
Illinois v. Rodriguez
Georgia v. Randolph
Wisconsin v. St. Martin
The United States Supreme Court has, over the
years, addressed the issue of third party
consent/span>. Some notable cases from
that court that are often cited are the
United States v. Matlock [i],
Illinois v. Rodriguez [ii],
and
Georgia v. Randolph [iii]. In review, we will examine
each of the above cases.
First, in the
United States v. Matlock, Matlock was arrested in front
of the home in which he rented a room. The officers then arrested
Matlock and transported him away from the residence. Officers still
at the residence made contact with Ms. Graff at the home. She stated
that she and Matlock shared a bedroom in the home. The police
requested and were granted consent to search the home for money and
a gun. During the consent search, the police found the items in
Matlock’s bedroom. The issue that the Supreme Court faced was
whether Ms. Graff had authority to consent to a search of the room
that she shared with Matlock. The Court held that Ms. Graff
possessed common authority over the room with Matlock. As such, she
did have the authority to consent to a search of the room. This
common authority rests upon mutual use of the property and joint
access to the location or item searched.
Next, in
Illinois v. Rodriguez, a woman told the police that
Rodriguez had beaten her, and he was in “our” apartment. She also
said that she had clothes and furniture at the apartment. Officers
met with the woman and went with her to Rodriguez’s apartment
without an arrest warrant or a search warrant. The woman opened the
door with a key and gave the officers consent to enter. Upon entry,
the officers observed drugs in plain view. During this entry,
Rodriguez was asleep in the apartment. After seeing the drugs, the
officers realized that the woman did not live at the apartment, but
had moved out weeks prior. The issue before the court was whether
consent from a third party was reasonable if a person appeared to
have the authority to consent, but actually does not have authority.
The Court held that consent will be valid if the police reasonably
believe the consenter has authority, even if the person does not
actually have authority. This is called “apparent authority.”
Therefore, officers do not always have to be correct, but they do
have to act upon a reasonable belief, based upon the circumstances
before them.
Lastly, in
Georgia v. Randolph,
the Supreme Court dealt with the issue of authority to
consent when two people, both having joint access and authority over
the property that is the subject of the consent, are present, and
one person consents to a search and the other refuses consent. In
this case, Mr. and Mrs. Randolph were having a domestic dispute, and
the police were called. Mrs. Randolph told the police that Mr.
Randolph was a cocaine user. The police asked for consent to search
the house, and Mr. Randolph refused consent. However, Mrs. Randolph
readily consented to a search of the house and led the police to Mr.
Randolph’s bedroom where a straw with cocaine residue was found. The
police used this as probable cause to obtain a search warrant and
additional cocaine was found. The issue before the Court was whether
the consent of a person with joint access and authority can give
consent over the present co-occupant’s objection. The court held
that a physically present co-occupant's stated refusal to consent to
a search renders a warrantless search unreasonable and invalid as to
him. Therefore, if two people, both of which have common authority
over the premises, are present and, one party refuses consent, that
refusal renders any subsequent consent search invalid against the
“refusing” party. The Court, however, explicitly stated that they
were not overruling
Matlock and
Rodriguez.
On June 22, 2011, the Supreme Court of Wisconsin
decided
Wisconsin v. St. Martin [iv], which involved facts
similar to both
Matlock and
Randolph. As such, the Wisconsin court had to decide the
issue of
whether a resident who is seated in a nearby police vehicle is
“physically present” such that his express refusal to consent would
bar a warrantless search in spite of the consent given by a
co-tenant. [v]
The facts of St. Martin, taken directly from the
case are as follows:
St. Martin's girlfriend, Latoya M. (Latoya),
arrived at the police department at 11:30 p.m. on June 8, 2006, and
asked to speak to an officer. She told the officer she had been
battered by St. Martin, with whom she shared an apartment. She
described being hit in the face and head and having her head slammed
down on the headboard of the bed, and said that when St. Martin
allowed her to leave the apartment, she had come directly to the
police. While she was at the station, she also told police she
suspected that St. Martin was selling cocaine. Specifically, she
mentioned that about six days earlier, she had walked into the
bathroom and had seen him with what looked like cocaine in a plastic
sandwich bag. She said that before that occurred, St. Martin had
asked her if she had taken something of his, which she denied; she
said he had eventually told her he had found the lost item and that
it was a "kilo." She also said she suspected he hid cocaine in their
apartment's attic because she had seen him go up there.
Latoya showed officers a driver's license that
gave an address that matched the apartment address, and she agreed
to go back to the apartment with the police. When they arrived at
the apartment, they knocked and got no answer. Latoya used her key
to let police into St. Martin's residence. St. Martin was standing
near the door when police opened it, and he said nothing in
objection to their entry. Once police entered, they took St. Martin
into custody based on the allegation of assault and took him out to
a police van. He was then placed under arrest. After St. Martin was
taken outside, the officers asked Latoya for her consent to search
the attic where she had said that drugs might be hidden. Latoya
consented to the search of the attic. Officers then went outside to
the police vehicle and asked St. Martin for his consent to search
the residence. He refused.
After obtaining Latoya's consent, the officers
accompanied her to the attic and searched the attic. One officer
noticed money sticking out from under some clothes, moved the
clothes, saw two bags with what looked like cocaine, and seized the
bags and the money. Chemical tests showed that the substance was
cocaine.
The officers who spoke with Latoya relayed what
she had told them to a drug investigator who immediately drafted an
affidavit in support of a search warrant for a second search. This
warrant contained some inaccurate statements regarding what Latoya
had told police. The statements attributed to her included some
statements that indicated she had knowledge about St. Martin
"regularly" and "often" having drugs at the apartment. The circuit
court later found that Latoya had not made those statements. The
affidavit also stated that police had seized a large amount of
cocaine as a result of the initial search.
In the initial, warrantless search, police had
seized cash and bags of cocaine. In the second search conducted
after police obtained a warrant, police had seized cash, a scale,
cell phones and documents. St. Martin moved to suppress the evidence
seized in both searches.
St. Martin argued that the evidence seized in the
first search should be suppressed because police did not have valid
consent to search his apartment without a warrant. He argued that
the evidence seized in the second search should be suppressed
because the warrant was invalid because it was based on an affidavit
that referenced the cocaine seized in the first search and that
included the inaccurate statements. [vi]
St. Martin’s motion to suppress was denied and he
appealed. The issue certified before Supreme Court of Wisconsin was
as follows:
Whether a resident who is seated in a nearby police vehicle is
“physically present” such that his express refusal to consent would
bar a warrantless search in spite of the consent given by a
co-tenant?
St. Martin argued that the rule set forth in
Georgia v. Randolph should apply whereas the State
argued that this case should be governed by rule set forth in the
United States v. Matlock.
The Supreme Court of Wisconsin then noted that
there are several legal principles that govern this case. First, the
court recognized that consent is an established exception to the
warrant requirement of the
Fourth Amendment. [vii] Second, the court noted that the
State bears the burden, by clear and convincing evidence, that a
warrantless search was reasonable under the
Fourth Amendment. [viii] Lastly, the court stated
[W]ithin the so-called "shared dwelling" category
of warrantless consent searches, the United States Supreme Court has
spelled out how to proceed when there is not unanimous consent. It
has said that "the consent of one who possesses common authority
over premises or effects is valid as against the absent,
non-consenting person with whom that authority is shared."
Matlock, 415 U.S. at 170. It has further stated that a
"physically present inhabitant's express refusal of consent to a
police search is dispositive as to him, regardless of the consent of
a fellow occupant."
Randolph, 547 U.S. at 122. As applied to cases, the
interaction of these rules can appear formalistic, as the United
States Supreme Court has acknowledged. It has recognized the "fine
line" drawn in shared-dwelling consent cases and has stated that
"the formalism is justified."
Randolph, 547 U.S. at 121. It is helpful that the Court
has made that point clear because this is a case where it comes down
to applying the rule set forth in Randolph with such justified
formalism. [ix]
The court then, having stated that Randolph
should be applied with formalism, then examined how other courts
have applied the holding of
Randolph. First, the court looked at the
United States v. Henderson [x], decided by the Seventh
Circuit Court of Appeals. In
Henderson, the police were called to the defendant’s
home in response to a report of domestic violence. Henderson met the
police at the threshold and, specifically and clearly refused to
consent to their presence in his home. Henderson was arrested for
domestic violence and transported to jail. After he was transported,
police asked his wife for consent to search the house; she consented
and signed a consent-to-search form. The Seventh Circuit held that
in order for
Randolph to apply, the defendant must have been present
for the consent and must have objected or refused consent. Here, the
defendant was not present. Therefore they held that the consent was
valid and they stated that Randolph …"expressly disinvites" any
reading broader than its specific facts. [xii]
The Supreme Court of Wisconsin also examined the
United States v. Hudspeth [xiii], from the Eighth
Circuit Court of Appeals. In
Hudspeth, the defendant had told police that he had
downloaded child pornography images from the internet onto his
computer at work. The police located those images on his work
computer and asked to search his home computer. Hudspeth refused to
consent to a search of his home computer, and he was arrested and
transported to jail. Officers then went to his home and spoke with
his wife. She consented to a search the home computer although the
police did not tell her about her husband’s earlier refusal. The
Eighth Circuit noted that the
Randolph majority consistently repeated it was
Randolph's physical presence and immediate objection to
Mrs. Randolph's consent that distinguished Randolph from prior case
law." Thus, since Hudspeth was not present and objecting when they
asked his wife for consent, the court upheld the search.
The Supreme Court of Wisconsin then applied the
narrow reading of
Randolph, much like the Seventh and Eighth Circuits, to
the facts of this case. First, the court noted that St. Martin never
objected to the officer’s entry into his home in response to the
domestic violence report. Second, St. Martin was arrested for
battery (a charge which he does not dispute) and taken to a police
car. There is no evidence that he was removed from the residence
under a pretext so the police could search for drugs. Third, while
he refused consent to search while in the back of the police car,
his girlfriend (Latoya) gave consent while in the residence. St.
Martin was clearly not physically present and objecting to her
consent, although he was nearby in a police car. Lastly, by all
indications, Latoya had apparent authority to consent in that her
driver’s license listed that address as her residence, she had a key
and St. Martin left her in the apartment after his arrest.
The Supreme Court of Wisconsin then held
We are persuaded that Randolph is to be construed narrowly.
Although the language therein explaining the holding is very
helpful, the rule stated in Randolph does not apply in this case
because we conclude that St. Martin was not physically present at
what the United States Supreme Court called the "threshold
colloquy." This case closely resembles the facts presented in the
Matlock case.
The consent given by St. Martin's co-tenant was valid, and as in the
Matlock case, that consent rendered the search constitutionally
permissible because it cannot be trumped by an objection from an
absent tenant. The cocaine and currency seized in
the initial search of the attic is therefore admissible evidence.
[xiv] [internal citations and quotations omitted][emphasis added]
As such, the consent search was constitutionally
permitted under the
Fourth Amendment.
The court also further decided that that the
subsequent search under the search warrant was constitutionally
permitted. This was because, even redacting inaccurate information
from the search warrant affidavit, probable cause for the warrant
was still present. In fact, in light of the fact that the court held
the drugs found in the consent search were admissible, the probable
cause for the search warrant was even clearer. As such, the evidence
discovered under the search warrant was also admissible.
___________________________
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] 415 U.S. 164 (1974)
[ii] 497 U.S. 177 (1990)
[iii] 547 U.S. 103 (2006)
[iv] 2011 WI 44 , 2011 Wisc. LEXIS 334
[v] St. Martin at 7
[vi] Id. at 10-13
[vii] Id. at 20 (citing Schneckloth v. Bustamonte,
412 U.S. 218 (1973))
[viii] Id. at 21 (citing State v. Kieffer, 217
Wis. 2d 531 (1998)
[ix] Id. at 21-22
[x] 536 F. 3d XXXX
[xi] St. Martin at 26
[xii] 518 F. 3d 954 (8th Cir. 2008)
[xiv] St. Martin at 34
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