August 2004 Volume 73 Number 8

United States Department of Justice Federal Bureau of Investigation Washington, DC 20535-0001

Robert S. Mueller III Director

Contributors’ opinions and statements Features should not be considered an endorsement by the FBI for any policy, program, or service. The attorney general has determined Homicidal Poisoning This study can help law enforcement that the publication of this periodical is By Arthur E. Westveer, 1 agencies obtain a clearer picture of the necessary in the transaction of the attributes of homicidal poisoners. public business required by law. Use John P. Jarvis, and Carl J. Jensen III of funds for printing this periodical has been approved by the director of the Office of Management and Budget. Identification with Victims of crime often identify with their The FBI Law Enforcement Bulletin the Aggressor 16 aggressors, which can challenge those (ISSN-0014-5688) is published attempting to help them. monthly by the Federal Bureau of By Ryan E. Melsky Investigation, 935 Pennsylvania Avenue, N.W., Washington, D.C. 20535-0001. Periodicals postage paid at Washington, D.C., and additional mailing offices. Postmaster: Send U.S. Land Border Law enforcement officials exercise address changes to Editor, FBI Law Search Authority 22 broad search authority to safeguard Enforcement Bulletin, FBI Academy, American borders. Madison Building, Room 201, By M. Wesley Clark Quantico, VA 22135.

Editor John E. Ott Associate Editors Cynthia L. Lewis Departments David W. MacWha Bunny S. Morris Art Director 9 ViCAP Alert 15 Book Review Denise Bennett Smith Assistant Art Director Unidentified Homicide Victim Police Suicide Stephanie L. Lowe 10 Focus on Illegal Drugs 20 Snapshot This publication is produced by Khat Sea Hunt members of the Law Enforcement Communication Unit, Training Division. 14 The Bulletin Honors 21 Bulletin Reports Internet Address Christos G. Rouses Memorial Collaboration [email protected] Reference and Statistics Cover Photos © PhotoDisc

Send article submissions to Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.

ISSN 0014-5688 USPS 383-310 Homicidal Poisoning The Silent Offense By ARTHUR E. WESTVEER, M.L.A., JOHN P. JARVIS, Ph.D., and CARL J. JENSEN III, Ph.D.

© Comstock Images

oisoning, of course, method of murder, which, international forensic literature differs considerably therefore, cannot be the subject also failed to reveal any previ- from many other of extenuation as some other ously published epidemiological “P 1 crimes, frequently committed in forms of killing can.” studies dealing with criminal uncontrolled passion and in the Given such a description, investigative analyses, or psy- heat of the moment. The innate the crime of homicidal poison- chological “profiles,” of the character of the crime of homi- ing would seem a rich arena homicidal poisoner. Yet, the cidal poisoning demands subter- for research. Surprisingly, potential for toxic substances fuge, cunning, and, what is however, other than a few becoming weapons of mass equally important, usually a published reviews of some destruction has increased period of careful planning, and famous historical poisoning dramatically in recent years. also not infrequently the repeti- cases, the authors found little Therefore, the authors won- tion of the act of administering written material on the charac- dered if empirical data con- poison.... Its characteristic being teristics of poisoners and their cerning homicidal poisoners one of premeditation, it is a victims.2 A further probe of the and their victims would reveal

August 2004 / 1 relationships, patterns, and period of the previous decade those homicides involving a characteristics that could help (1980-1989).4 chemical (nondrug) poison or a law enforcement professionals. Traditionally, the UCR pro- drug/narcotic that an offender Building on the few empirically gram has offered the criminal had used for homicidal pur- based studies that exist, they justice community a way to poses. They excluded reports examined recently reported look for fluctuations in the level entailing asphyxiation/fumes poisoning homicides to find out. of crime and to provide statis- because the data did not allow tics for varied research and them to differentiate asphyxia- METHOD planning purposes. From these tion by smothering from those To conduct this research, data, the SHRs reveal much cases concerning chemical the authors drew upon FBI of what criminologists know fumes (e.g., carbon monoxide). Uniform Crime Reporting empirically about the nature and (UCR) supplementary homicide scope of homicidal behavior in RESULTS reports (SHR) of those incidents the United States. Of the total 186,971 SHR occurring in the United States For this study, 186,971 SHR reports in the United States for over the last decade (1990- murders in the United States the period 1990-1999, 346, or 1999). Specifically, they exam- that occurred during the 10-year 1.9 per 100,000 total homicides, ined these data to isolate homi- period 1990-1999 were avail- were poisonings involving a cides where a poisoning agent able for analysis. This volume single victim and a single of- was reported as the cause of of cases represented an 8 per- fender or a single victim and an death.3 The authors intentionally cent decline in reported murders unknown number of offenders.5 selected this time period to compared with the 202,785 Compared with the 1980s when permit comparisons with an homicides recorded in the 292 similar homicidal poison- earlier work that reviewed decade of the 1980s. From these ings were reported, the 1990s similar data reported over the cases, the authors extracted saw an increase of 18 percent

Mr. Westveer is a violent crime Dr. Jarvis is an instructor in Dr. Jensen, an FBI special agent, specialist in the Behavioral the Behavioral Science Unit is an instructor in the Behavioral Science Unit at the FBI Academy. at the FBI Academy. Science Unit at the FBI Academy.

2 / FBI Law Enforcement Bulletin of these crimes, which repre- males and females in poisoning 1 percent to 3.5 percent among sented a 35 percent increase in homicides. Victims of other other races as victims compared the rate of these cases coming to races (American Indian or with the 1980s analysis. Addi- the attention of law enforcement Alaskan Native and Asian or tional findings showed that during these years. Pacific Islander) were as likely whites were predominantly the The effective investigation to be males as females. victims of male offenders, of homicides generally, and blacks were almost equally the poisoning cases in particular, Offender Attributes victims of male and female often depends upon a number The data also revealed that offenders, and people of other of factors, including such basic victim characteristics may dic- racial backgrounds were equally investigative data as victim tate some contingency related to likely to be victims of female or demographics, possible offender offender characteristics. That is, unknown offenders. characteristics, geographic and when victims were female, the By race, black poisoning temporal features of the case, offenders were predominantly offenders were males twice as and any particular incident male. By contrast, if victims often as females, and white attributes that may assist law poisoning offenders also were enforcement. The findings of more likely to be males. By sex, this study, therefore, underscore the result that 168 (48.6 per- the importance of cooperation cent) of the poisoning offenders between the medicolegal and ...the potential for toxic were male compared with 115 law enforcement communities substances becoming (33.2 percent) female offenders and serve as a foundation for weapons of mass would seem to challenge the the continued examination of “destruction has perception that primarily fe- behavioral attributes of homi- increased dramatically males use poisons. Of course, cidal poisoners. in recent years. these cases represented only those murders that became Victim Demographics known to law enforcement. It The SHR data for the 1990s may be that females are the showed that victims of homi- predominate poisoners, but are cidal poisonings were divided were male, the offenders were more successful at getting away almost equally between males divided almost equally between with the crime. Furthermore, and females. The victims’ ages males and females. Regardless this information reflected a 50 ranged from a single victim less of the sex of the victim, the” percent increase in the partici- than 1 week old to 13 victims poisoning offender was pre- pation of females in this crimi- 75 years or older. The greatest dominantly white. When exam- nal homicidal behavior com- number of victims fell in the ining race, it appeared that pared with data from the 1980s. age range of 25 to 44 years, homicidal poisonings, like other It must be noted, of course, that which constituted 91 (37.2 homicidal behavior, usually did the sex of 63 (18.2 percent) of percent) of the victims. The age not cross racial lines, with the the offenders remained un- of the victim was unknown in 4 offender predominantly of the known. The offenders’ ages (1.2 percent) of the homicides. same race as the victim. How- ranged from one offender be- By race, white victims were ever, this information also tween the ages of 10 and 14 to divided almost equally between indicated a slight increase from four offenders 75 years or older.

August 2004 / 3 The age category of 20 to 34 family (63.9 percent) than from offender. So, the prevalence of years accounted for 111 (32.1 within the family (36.1 percent) unknown characteristics may percent) of the offenders. The of the offender. Victims outside dampen the significance of age of the offender was un- the family of the offender ac- some of these patterns. In known in 73 (21.1 percent) of counted for 221 (63.9 percent) particular, the variance with the the homicides. These patterns of the poisoning homicides. The findings of the 1980s may be remained relatively stable in five most frequent relationships due to fluctuations in missing comparison with those of the outside the family were ac- data relative to these cases, 1980s. quaintance (69, or 19.9 percent), rather than true compositional However, as a word of unknown (66, or 19.1 percent), changes in homicidal-poisoning caution, because the authors other (31, or 9 percent), friend behavior. found the percent of poisoning (22, or 6.4 percent), and girl- offenders with unknown charac- friend (13, or 3.8 percent). Type of Poison teristics to be 20 to 30 times Thirty (8.7 percent) of the higher than those with unknown © PhotoDisc female offenders and 38 (11 characteristics among all homi- percent) of the male offenders cide offenders, some of these employed a chemical (nondrug) demographic findings must poison. Eighty-five (25 percent) remain tentative. This problem female offenders and 130 (37.6 is most likely due to a lack of percent) male offenders used a witnesses to provide insight into drug/narcotic as their homicidal offender characteristics. agent. Although it was not possible from the SHR to deter- Relationship of Poisoning mine the exact identification of Victim to Offender the poison used, male offenders Homicides within families chose chemical (nondrug) occurred with some frequency poisons in a ratio of 5 to 4 and accounted for 125 (36.1 compared with female offend- percent) of the poisonings in the ers. While male offenders used 1990s. The four most frequent These results are in stark a drug/narcotic in a ratio of relationships within the of- contrast to the findings from the almost 3 to 2 to female offend- fender’s family were son (9.5 1980s that showed just 39 ers, this still represented a 33 percent), daughter (7.2 percent), percent of victims outside the percent increase in the use of wife (6.9 percent), and husband family of the offender. The drug/narcotic poisonings by (5.2 percent). However, while earlier analysis disclosed a more women when compared with many people may widely be- equitable distribution of rela- data from the 1980s. Because lieve that poisoning is predomi- tionships, whereas this study the SHRs did not identify the nantly a household or domestic revealed substantially more exact poison used in the homi- crime, this study found that of victimizations of individuals cides, this important piece of the reports where the relation- outside the family. But, once information must come from a ship of the offender to the again, 66 homicide victims more in-depth analysis of the victim was known, more of the (19.1 percent) in the 1990s had specific case reports on file in victims came from outside the an unknown relationship to the the various jurisdictions.

4 / FBI Law Enforcement Bulletin Case Examples ecause they often display few visible signs, homicidal poisonings remain one of the most difficult B crimes to detect and prosecute. All too often, authorities may certify a death as due to a natural or unknown cause, resulting in important evidence of the crime being buried with the victim. Therefore, a great number of homicides by poisoning are detected only upon specific toxicological analyses carried out after the exhumation of the victim’s remains. Selected from FBI and police files, as well as from public source court documents, these cases identify incidents in which the nature of the initial poisoning was either not detected or misdiagnosed. In most cases, the initial causes of death were thought to be accidental or due to natural causes, but were determined later (through considerable legal and investigative effort) to be homicides where poison was the weapon of choice. Case #1 In a small country town, a white male suddenly became extremely ill with what his family claimed was pneumonia. Upon admission to the local hospital, he received treatment of antibiotics and pain killers. Ten days after the onset of his symptoms, he succumbed and was declared to have died from his illness. Unbeknownst to authorities, the victim’s wife was involved in an adulterous affair and wished to marry her lover. After her husband’s death, she returned some highly toxic herbicide to a fruit grower who became suspicious and contacted the police. Upon further investigation, the police learned that the victim’s wife had collected on a $55,000 insurance policy and was pressuring her paramour into marriage. The police had the husband’s body exhumed and discovered the highly toxic chemical paraquat in his body. As a result of these findings and other evidence, the police arrested and charged the wife with the death of her husband. She was later convicted and sentenced to 5 years’ imprisonment and treatment in a mental hospital.

Case #2 Officers were called to a residence at 3:30 a.m. to treat an 8-month-old baby who reportedly had stopped breathing. The boy was transported to the local hospital and died later that morning. It was presumed that the infant had suffered from sudden infant death syndrome (SIDS). An autopsy later revealed that the child had a blood ethanol level of 0.12 (120 mg/dl). Further investigation led the police to suspect that the father had given the child a toxic dose of peppermint schnapps. The father was arrested and charged with negligent homicide for the alcohol poisoning of his son.

Case #3 Police found a 33-year-old woman dead on her waterbed. The investigating officer noticed a black substance around her mouth and nose and, recalling similar evidence from a case 12 years earlier, suspected possible cyanide poisoning. During the autopsy, personnel detected the distinctive bitter- almond odor common to cyanide poisonings.7 Laboratory tests confirmed the presence of cyanide in the victim’s blood, but not in her stomach contents. Due to this finding, investigators thought that the victim somehow was forced to inhale hydrogen cyanide gas. They later discovered that her husband worked at an exterminating company where hydrogen cyanide was readily available. Combining this information with evidence of both marital and financial problems, the police later arrested the husband. Prosecutors have sought a first-degree murder conviction and a possible life sentence.

August 2004 / 5 As to what can serve as a were very similar to the analy- varied from a high of 41 in 1995 potential homicidal poison, an ses of the 1980s with the excep- to a low of 26 in 1999. The early, but accurate, definition tion of an increase of 9 percent average number of poisoning can suffice: “What is there that in reported cases from the homicide reports per year was is not a poison, all things are western United States. 34.6. Yet, the authors found poison and nothing without The fact that UCR received little year-to-year variation in poison. Solely the dose deter- fewer SHR reports from one the data reported. mines that a thing is not a geographic area over another, The incidence of poisoning poison.”6 Thus, any chemical however, does not necessarily homicide reports by month for substance has the potential of mean lower poisoning homicide the decade varied from a high of becoming the means of commit- rates in any specific region. 40 in December to a low of 16 ting a poisoning homicide. in August. The average rate of Clearly, the prime candidate for poisoning homicide reports by the most effective weapon in month was 28.8. homicidal poisonings is the The data collection format chemical with the greatest ...the prime candidate of the SHRs made it impossible lethality, the smallest dose, and for the most effective to determine an exact motive in the least likelihood of detection. weapon in homicidal 220 (64 percent) of the crimes because of the generalized Geographic and “poisonings is the chemical with the categories, such as “other, not Temporal Features specified,” “other,” or “unable A total of 44 (88 percent) of greatest lethality, to determine circumstances.” the 50 states reported poisoning the smallest dose, and This important information homicides for the decade of the the least likelihood relating to motive likely will 1990s. The seven states with the of detection. have to come from a more in- most reported cases, accounting depth analysis of specific cases for 178 (51.5 percent) of the among local jurisdictions. total reported homicides, were Interestingly, only two (0.6 California with 63 (18.2 per- Factors that could impact the percent) SHRs reported the cent), Washington with 34 (9.8 number of reports received from circumstance as related to a percent), Texas with 23 (6.6 a jurisdiction include legislation “lover’s triangle,” which ap- percent), Pennsylvania with 22 requiring autopsies or toxicol-” peared contrary to the general (6.4 percent), and Arizona, ogy screens on all deaths of un- perception that poisons often Michigan, and New York with known cause, the sophistication are used in domestic situations 12 (3.5 percent) each. Upon of analytical toxicology labora- to remove spouses or significant analyzing the 346 poisoning tories in the area, or the work- others. homicide reports by geographic load of the local law enforce- Because of the large number region for the United States, the ment or forensic pathology of reports that fell into general- authors found that the Northeast personnel. ized unknown categories, the had 52 (15 percent), the Mid- authors also could not deter- west 56 (16 percent), the South Modus Operandi mine the exact motive as it 87 (25 percent), and the West The number of homicide related to the relationship of 151 (44 percent). These findings reports per year for the decade victim to offender. Additionally,

6 / FBI Law Enforcement Bulletin Demographics of Homicidal Poisonings (1990–1999)

Attribute Victim Offender Age 25-44 20-348 Sex Male/Female9 Male10 Race White11 White12 Circumstances Unknown13 Unknown Relationship 63 percent outside family14 36 percent within family Weapon 75 percent drug/narcotic 25 percent nondrug15 Unknown 20-30 percent higher for both than that of all homicides

they could not ascertain how during the decade. This may harmony, and psychological the poison was administered. have indicated that homicide makeup. Unfortunately, SHRs However, a summary of find- investigators had discovered a do not contain this information; ings concerning the demograph- poisoned victim but could not it can be generated only by ics of homicidal poisonings identify the offender. An old in-depth research into actual depicts the consistency of and wise adage related to circumstances surrounding patterns in these crimes and homicide detection states that homicidal-poisoning cases. may provide an opportunity for “all deaths are homicides until Such analyses may assist law investigators in developing facts prove otherwise.” As enforcement personnel in their leads that may reveal the meth- evident from the cases identi- investigations by arming them ods used by these killers. fied at the outset of this research with a clearer picture of the and the statistical analysis poisoner. Finally, while this CONCLUSION performed, perhaps this adage work has focused on individual From this study, the authors could prove more relevant to incidents of homicidal-poison- concluded that the incidence poisoning cases rephrased as ing behavior, the importance of reported homicides due to “all deaths, with no visible signs of these patterns may be even poisoning comprised only a of trauma, may be considered more significant in the context small portion of the SHR data poisonings until facts prove of the 21st century. That is, the for the decade. They wondered, otherwise.” potential for toxic substances though, if more of these types of The authors also felt that becoming a weapon of mass homicides remained undetected many other factors may be destruction may prove more of because of the many holes in important to the identification a substantial threat than in the the investigative net through of a poisoning homicide of- past. In addition, the expanding which the homicidal poisoner fender, such as the offender’s elderly population may provide can slip. Also, many of the socioeconomic status, IQ, level additional victims for those who demographics of poisoning of education, professional wish to commit homicides that offenders were largely un- training, personality (introver- appear as deaths from natural known, at least when compared sion/extroversion), ethnicity, causes. Understanding some with that of overall homicides prior criminal history, marital of the attributes of homicidal

August 2004 / 7 poisoners may enhance the incidents that come to the attention of the 8 Age or sex unknown in approximately ability of the law enforcement police, form the basis for all analyses 20 percent of the cases. presented in this article. For additional 9 If victim was male, offender was no and forensic communities when information on UCR, see U.S. Department more frequently male or female; if victim they are called upon to assist in of Justice, Federal Bureau of Investigation, was female, offender was more frequently the prevention and investigation Crime in the United States, 2002 (Wash- male. of homicides. ington, DC, 2003). 10 More frequent than female, but 50 4 See A.Westveer, J. Trestrail, and A. percent increase in female offending Pinizzotto “Homicidal Poisonings in the compared with analyses of 1980s. Endnotes United States: An Analysis of the Uniform 11 If victim was white, offender was 1 J. Glaister, “Methods and Motives,” Crime Reports from 1980-1989,” more frequently male; if victim was black, in The Power of Poison (New York, NY: American Journal of Forensic Medicine offender was no more frequently male or William Morrow and Company, 1954), and Pathology 17, no. 4 (1996): 282-288 female. Black male victims occurred two 153-182. for all references in this article to data on times more than black female victims; 2 Some earlier attempts to identify homicidal poisonings occurring from 1980 white or other race males occurred equally characteristics of poisoners include those through 1989. with white or other race females. Other by J. Rowland who found that poisoners race victims increased from 1 percent to likely had an unfortunate married life, 3.5 percent compared with the analyses of failed to make an impression on life, 1980s. possibly were connected with the medical 12 Both white and black offenders were world, were vain, possessed a mind more frequently male. without sympathy or imagination, and Understanding...homicidal 13 Circumstances were not informative likely were spoiled by their parents, see poisoners may in 64 percent of cases due to being “The Mind of the Poisoner,” in Poisoners reported as unknown/other/missing. Yet, in the Dock (London, UK: Arco Publica- enhance the ability of three times more husbands as wives were tions, 1960), 230-237. Alternatively, C. “the law enforcement reported as victims in lover’s triangle Wilson described poisoners as prone to and forensic circumstance, along with some acquain- daydreaming and fantasy; possessing an tance victims in this circumstance. artistic temperament; and being weak- communities...to assist 14 Relationship reported to be 39 willed, cowardly, and avaricious, see in the prevention and percent outside family in the analyses of “Poisoners,” in The Mammoth Book of investigation of the 1980s. Crime (New York, NY: Graf Publishers, 15 Drug/narcotic type poisoning Inc., 1988), 476-484. While these homicides. involving female offenders increased 33 depictions may have been anecdotally percent compared with the analyses of the accurate when offered, the question 1980s. remains of whether current law enforce- ment perceptions and medicolegal 5 statements about poisoners’ characteristics For the purposes of this study, in The authors thank the FBI UCR staff still are valid and reliable. For recent those reports where there were an for providing SHR data relating to exceptions, see A.Westveer, J. Trestrail, unknown number of offenders, the authors poisoning homicides. Additionally, they and A. Pinizzotto “Homicidal Poisonings assumed that at least one offender ”was express appreciation to John Trestrail in the United States: An Analysis of the involved. Therefore, they included all of for his insights on earlier drafts and his Uniform Crime Reports from 1980-1989,” these cases, even though the exact number contributions to earlier works in this American Journal of Forensic Medicine of offenders remained unknown. area. Finally, they gratefully acknowl- 6 and Pathology 17, no. 4 (1996): 282-288; The physician Paracelsus (1493-1541) edge those Behavioral Science Unit and J. Trestrail, Criminal Poisoning: made this observation in 1538. members who assisted at all stages 7 Investigational Guide for Law Enforce- It is estimated that only about 50 of the process, including Intern Emily ment, Toxicologists, Forensic Scientists, percent of the human population can detect Noroski who reworked initial drafts and Attorneys (Totowa, NJ: Humana the odor of cyanide. Therefore, the and Special Agents Harry Kern and Press, Inc., 2000). possibility exists that the use of this Sharon Smith who reviewed the final 3 UCR data, believed to be the most poisonous substance often may go product. reliable source of information concerning undetected.

8 / FBI Law Enforcement Bulletin ViCAP Alert

Alert to Law Enforcement The Kansas City Police Department contacted the FBI’s Violent Criminal Apprehension Program (ViCAP) and submitted a report about the child. The information was entered into the nationwide ViCAP database of murdered, missing, or uniden- tified found persons. Further, ViCAP conducted searches of its own and other databases for similar crimes. Based on photographs of the young child’s head, the National Center for Missing and Ex- ploited Children in Alexandria, Virginia, produced the first computer-generated depiction of how the child may have looked in life. Release of this picture garnered national attention and produced numerous leads, none of which revealed her iden- tity. Other attempts by forensic experts who pro- duced drawings and a bust constructed from the Unidentified Homicide Victim actual face and skull received media and news publicity but have not resulted in identification of The Kansas City, Missouri, Police Depart- the child. ment seeks information regarding the iden- Almost 1,000 leads have been logged in this tity of a child homicide victim. The child’s head- case. A poster was released through Interpol to its less body was found by officers on April 28, 2001, over 180 member nations, and leads have been and the severed head was found on May 1, 2001, in followed in Great Britain, Holland, and Jamaica. the same area. The child never was identified; the On July 15, 2003, the remains of Precious Doe Kansas City community named the child Precious were exhumed and the Forensic Anthropology and Doe. Computer Enhancement Services (FACES) labo- ratory reconstructed the child’s skull and prepared Crime Scene a model of what the child’s face may have looked On April 28, 2001, along a dirt road in a like. wooded area at 59th and Kensington in Kansas The Kansas City Police Department asks any City, Missouri, officers found the nude, headless agency having information concerning the identity body of a young African-American female lying in of the child homicide victim to use the following weeds along the edge of the road. Two searches of contact information: 1) Kansas City Police the area with cadaver dogs failed to turn up any Department at 800-399-8517; 2) Sergeant David related evidence. On May 1, 2001, the victim’s Bernard, Kansas City Police Department, Homi- severed head, wrapped in a trash bag, was found in cide Unit, 1125 Locust, Kansas City, Missouri, the same wooded area. 64106, at 816-234-5043 or via e-mail at Subsequent forensic examination determined [email protected]; 3) Crime Analyst Suzanne the victim to be a child between 3 and 4 years of D. Stiltner, ViCAP, Quantico, Virginia, 22135, at age, 42" to 44" in height, and between 35 and 40 703-632-4173; or 4) Major Case Specialist Eric W. pounds. She had a light, crescent-shaped birthmark Witzig, ViCAP, Quantico, Virginia, 22135, at on her front, upper left shoulder. 703-632-4194 or via e-mail at [email protected].

August 2004 / 9 Focus on Illegal Drugs

Khat fast-paced society would present a crisis. Armed A Potential Concern with an understanding of this natural narcotic, in- for Law Enforcement cluding its origins, chemical and medical con- cerns, and cultural status, law enforcement will be By M. Justin Crenshaw, M.S., and Tod Burke, Ph.D. better equipped to combat it if it expands into the larger U.S. population. Composition and Cultivation The main psychoactive ingredients in khat are cathinone (chemically similar to amphetamine) and cathine. In addition, khat plants contain chemi- cals called alkaloids, which long have served as narcotics and hallucinogens. DEA classifies cathinone as a Schedule I nar- cotic.3 The amounts of cathinone that exist in khat and, thus, the drug’s mind-altering effects may vary based on the area where it was harvested. For instance, the amount of cathinone in khat plants from Kenya may reach 14 percent, while levels in plants from Yemen may be as low as 3.3 percent.4 Once khat leaves dry and the cathinone evaporates, only cathine remains, and the plant drops to a Schedule IV narcotic.5

© Drug Enforcement Administration Current interest in cathinone exists because recent discoveries confirm that illegal laboratories he word khat (pronounced cot) may not produce a chemical called methcathinone, a syn- Tevoke much response from most of Ameri- thetic form of cathinone. Ephedrine, a compound can society, but it could herald a significant prob- found in over-the-counter cold medicines, and lem for law enforcement in the near future.1 Khat is pseudoephedrine represent the main precursor a plant that originates in eastern Africa and the chemicals. Methcathinone, which sells as a meth- southern Middle East; people of these regions amphetamine alternative, commonly is called cat know it well and, reportedly, for centuries have and often mistaken for khat.6 chewed its leaves for their narcotic properties. Us- The khat tree grows 3,000 to 6,000 feet above ers in these areas may spend up to half of their sea level and can reach a height of 20 feet. The income on the drug.2 Khat is known by other leaves of the plant are reddish-brown while on the names throughout the world; people in eastern tree, but quickly become a leathery yellow-green Africa most commonly call it miraa, but it also is once picked. Although people may use all of the referred to as chat, jat, oat, kat, African salad, and stems and leaves, they appear to prefer the young Abyssinian tea. Many countries consider it a legiti- shoots at the top of the plant because they find mate (and profitable) export. them softer and easier to chew than the older ones The United States considers khat dangerous toward the bottom. While most leaves are har- and classifies it as a controlled substance. Un- vested for chewing, some are deliberately dried doubtedly, a passion for this drug in America’s and crushed into a powder form for additional

10 / FBI Law Enforcement Bulletin uses, such as smoking, brewing tea, or Examples of Khat Use Effects sprinkling over food. People harvest the leaves and stems of the plant on a con- Short Term Long Term tinual basis throughout the year. hallucinations anxiety Khat leaves must be transported bizarre thoughts confusion quickly to market because once they dry (within 48 hours), the cathinone evapo- schizophrenia dysphoria rates, leaving only the milder cathine. increased blood aggressive behavior When this happens, of course, users who pressure insomnia crave the more potent effects find the rapid breathing khat of little worth. To help avoid this, high blood pressure harvesters package the leaves and stems lethargy weight loss due to in plastic bags or wrap them in banana mild depression decreased appetite leaves to preserve their moisture and may nightmares increased heart rate sprinkle them with water during transport to keep them moist. Frozen or refriger- heightened alertness stomach irritation ated khat may retain cathinone longer. loss of appetite dehydration Effects and Concerns difficulty sleeping hallucinations Cathinone stimulates an excessive inflated ego paranoia production of dopamine, which controls agitation decreased absorp- feelings of pleasure and happiness, in the aggressive behavior tion of important human brain. This can lead to a variety of nutrients short-term effects, including hallucina- tions, bizarre thoughts, schizophrenia, high blood pressure, rapid breathing, lethargy, mild depression, nightmares, and height- increased heart rate and stomach irritation, and ened alertness.7 Other possible examples are a sup- dehydration. Visual hallucinations and paranoia pressed appetite for food and sex8 and an increased represent additional examples.12 The chemicals in ability to stay awake for long periods of time.9 The khat also may block the body’s absorption of iron drug also can make users more aggressive, inflate and other necessary minerals, causing potential their egos, and cause them to be irrational and health consequences.13 irritated, which may lead to unusual behavior, such Advocates of khat argue that the drug eases as increased arguments, reckless actions, and vio- symptoms of diabetes, asthma, and intestinal dis- lence.10 Additional, less dramatic examples can orders. Furthermore, users claim that they are more include dry mouth, flushing, and an urge to uri- adept at problem solving and social communica- nate.11 The effects of chewing khat, which can vary tion and have increased spirits and sharpened by user, may not show up for 3 or more hours, but thinking.14 then may last for several hours. Many khat users have adapted strategies to The long-term effects for chronic users may impede the ill effects of the drug. Most veteran include anxiety, confusion, dysphoria, aggressive consumers can estimate the amount they can chew or agitated behavior, insomnia, high blood pres- to avoid the negative effects of sleep deprivation sure, loss of weight due to a lack of appetite, and loss of appetite. Neophytes typically do not

August 2004 / 11 start chewing large amounts of khat; therefore, of 21,070 pounds from the previous year. In they build up a tolerance for the drug slowly. Some Columbus, Ohio, which has the second largest users even have supplemented alcohol or other Somali population in the United States, police depressants to counteract the effect that khat has on seized 860 pounds in 2002, an increase over the sleep. Due to the small quantity often consumed, previous 2 years’ seizures of 633 pounds and 8.5 overdose is unlikely. pounds, respectively.17 New York City, Detroit, While khat does have a strong psychological Minneapolis, Seattle, and San Diego may see an addiction for most users, the withdrawal symptoms increase in khat arrests due to growing eastern are relatively minor when compared with other African communities.18 illegal drugs, such as heroin and cocaine. With- Many immigrants are unaware that khat is ille- drawal signs may include laziness, depression, gal in the United States. As a result, they often use nightmares, and slight tremors.15 The duration of the drug in public and later face arrest. Some cities these symptoms may differ by user. Furthermore, even have seen khat advertised and sold openly in the severity of the depression can vary and may grocery stores and restaurants. Many sellers, in an lead to agitation or sleeping difficulties. attempt to keep sales of the drug quiet, only deal The rise of khat use in the United States seems with users of eastern African descent and turn to coincide with the increase in the number of away everyone else. immigrants arriving from eastern Africa and the On the street, khat currently sells for $28 to $50 Arabian Peninsula.16 In 2000, the U.S Customs a bundle (100 to 200g) and $300 to $440 a kilo- Service seized 70,008 pounds of khat, an increase gram;19 these prices currently compare with those of some other drugs, such as ecstasy and oxycodone, but are Seizures of Khat at U.S. Ports of Entry (in Metric Tons) considerably lower than prices of other narcotics, such as marijuana, cocaine, and heroin. Khat’s low cost makes it appealing to many drug users, especially youths. Most of the khat enters the United States from eastern Africa via overnight shipping, although there have been some instances of cultiva- tion in the United States. A majority of Source: Drug Enforcement Administration khat arrives through

12 / FBI Law Enforcement Bulletin commercial shipping services, although some pas- Because khat has previously existed only in sengers aboard airlines will smuggle it in their underdeveloped countries, few scientific luggage or place it with other cargo and mark it as studies exist. Reliable data could help law “vegetables.” enforcement agencies understand the poten- tial long-term effects of khat. Recommendations 20 To target incidents of khat use, law enforce- With khat seizures nearly doubling annually, ment and medical institutions, including law enforcement personnel must become more hospitals, research facilities, and health cognizant of this drug. The following recommen- departments, must make a coordinated effort. dations may assist officers to better combat its manufacturing, distribution, and use: Conclusion Law enforcement officers must receive train- With khat numbers growing in the United ing in academies and in-service seminars to States, law enforcement must fight this drug recognize khat. Examples of proactively. To evaluate the po- the actual drug can aid in tential for khat use, Americans identification. Drug detec- only need to consider the pro- tion canines also should be gression of other drugs, such as Armed with an trained to detect khat. oxycodone and ecstasy, which “understanding of this To identify users on the started with a small community natural narcotic...law street, officers must have an of users and now continue to enforcement will be understanding of khat spread across the country. While better equipped to symptoms and methods of khat has not yet become wide- combat it.... use. spread, it soon may be a legiti- Because the trafficking and mate problem. smuggling practices of khat If law enforcement person- are not unlike those of other ” nel can become educated about illegal narcotics coming into the United khat, perhaps this knowledge will prove valuable States, current drug detection methods can when combating this drug in the United States. The prove successful. key to early success in this effort is recognition. Law enforcement agencies must use interna- tional communication and cooperation to Endnotes track the progression of khat and possible 1 The authors based this article on their research and knowl- dealers migrating to the United States. edge of narcotics. 2 Teri Randall, “Khat Abuse Fuels Somali Conflict, Drains Law enforcement must be aware of any khat Economy,” Journal of the American Medical Association 269 cultivation in the United States. The plant (January 6, 1993): 12-14. grows in higher altitudes with wet climates 3 A Schedule I narcotic presents a high potential for abuse and (or in greenhouses or indoors where the dependence. Examples include LSD, heroin, and cocaine. For climate can be duplicated); in this regard, additional information, see http://www.usdoj.gov/dea/agency/ csa.htm. officers must monitor, as appropriate, any 4 Mwingirwa Kithure, “The Dark Side of Chewing Miraa areas in the United States that may provide (Khat)”; retrieved on January 23, 2004, from http:// khat with the means to grow. www.africaonline.com/site/Articles/1,10,2654.jsp.

August 2004 / 13 5 A Schedule IV narcotic presents a lower potential for abuse 13 Supra note 12 (Al-Kamel). and dependence than some other controlled substances. Examples 14 Supra note 12 (Al-Kamel). include benzodiazepines, darvon, and phenobarbital. For addi- 15 Supra note 4. tional information, see http://www.usdoj.gov/dea/agency/csa.htm. 16 ìKhat Use Increases in Some U.S. Cities,î Alcoholism and 6 U.S. Department of Justice, Drug Enforcement Administra- Drug Abuse Weekly 14 (September 16, 2002): 7-9. tion, ìKhat,î Drug Intelligence Brief, June 2002; retrieved on 17 Ibid. January 23, 2004, from http://www.usdoj.gov/dea/pubs/intel/ 18 Frank Bures, ìFrom Civil War to the Drug War: Immigrants 02032/02032.html. Are Risking Prison for a Taste of Home,î Mother Jones 26 7 Supra note 4. (November/December 2001): 23-24. 8 Jonathan Stevenson, ìKrazy Khat: Somaliaís Deadly Drug 19 Supra notes 6 and 12 (Al-Kamel). War,î The New Republic 207 (November 23, 1992): 17-19. 20 T.Trent Gegax, ìMeet the Khat Heads,î Newsweek, 9 Supra note 4. September 30, 2002, 35. 10 Supra notes 2 and 8. 11 Richard B. Seymour, ìKhat Has U.S. Presence,î Psycho- Lt. Crenshaw serves in the U.S. Air Force. pharmacology Update 10 (June 1999): 5. Dr. Burke, a former police officer, is a professor of criminal 12 Ibid.; and Mohamed Al-Kamel, ìKhat Plantî; retrieved on justice at Radford University in Radford, Virginia. January 24, 2004, from http://www.geocities.com/forceps1974/ khat.html.

The Bulletin Honors

Christos G. Rouses Memorial he Lowell, Massachusetts, Police Department pre- T sents the Christos G. Rouses Memorial. This monu- ment, dedicated in 1980, is named for Officer Rouses, who was shot to death by an armed robber while responding to a silent alarm at a local pharmacy. The memorial, located in the plaza directly in front of Lowell Police Department Headquarters, depicts an officer with his hand on the shoulder of a young child and features the names of Officer Rouses and other fallen Lowell officers. The memorial sits, surrounded by landscaping, in the center of an unused fountain.

Nominations for The Bulletin Honors should include at least one color 5x7 or 8x10 photograph (slides also are accepted) of a law enforcement memorial along with a short description (maximum of 200 words). Contributors should send submissions to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.

14 / FBI Law Enforcement Bulletin Book Review

Police Suicide: Tactics for Prevention actions involving the officer’s family. Second, by Dell P. Hackett and John M. Violanti, results from a National Police Suicide Charles C. Thomas Publisher, Springfield, Foundation’s officer survey revealed 10 rea- Illinois, 2003. sons why officers commit suicide. Within this The information, issues, and concepts pre- point, the authors also identify a startling po- sented in Police Suicide: Tactics for Preven- tential phenomena coined “suicide by sus- tion deserve serious consideration in the ad- pect.” This involves officers deliberately fail- vancement of law enforcement suicide ing to initiate a defensive action against a prevention and reduction. The book was re- life-threatening situation as an honorable way searched and written by leading experts in out of their depressed state of mind. The third their fields of law enforcement, pathology, point entails information on a training module, psychiatry, and other behavioral sciences, Gatekeeper, that focuses on officers in a crisis along with consultants connected to law en- situation using the technique of questioning, forcement. persuading, and referring as preventive mea- Studies have documented that within a sures to suicide incidents. specific time frame, some law enforcement Police Suicide: Tactics for Prevention is a agencies have had more officer deaths from must read for all law enforcement personnel, suicide than from line-of-duty homicides. In ranging from the basic recruit in the academy some situations, this rate is higher than in other to the top echelons of command, including employment areas, as well as the general staff supervisors, managers, administrators, population of the United States. The authors of and commissioners. It is a critical book for the this book addressed in-depth the law enforce- policy and procedures writers, in-service ment teaching and working culture, ranging training and assessment center representa- from entry into the academy to executive-level tives, psychological testing personnel, correc- administration of the department. They exam- tional members, chaplains, and all first re- ined the supervisor’s role in detection and pre- sponders in the community. vention of suicide and organizational denial of This book is an exemplary research effort the suicide dilemma, as well as concerns of in the field of law enforcement designed to family members and survivors of the victim reverse the thinking that may lead to life-end- officer, including the who, what, when, where, ing decisions. Information in this book is es- how, and why of confidential help, or lack sential to the advancement of law enforcement thereof, from professionals. suicide prevention. It surfaces the hidden psy- The purpose of this well-researched book chological dangers common to law enforce- is to get the reader much closer to the detection ment officers involving job stress and their of law enforcement personnel in low- to high- roles in society. risk crisis postures who may commit self-harm coupled with sound strategies and tactics for Reviewed by prevention for all departments. Three strong Larry R. Moore points emerge from the book besides its over- Certified Emergency Manager all comprehensiveness. First, an outstanding International Association modified flowchart depicts a model for suicide of Emergency Managers prevention with initial and ending protocol Knoxville, Tennessee

August 2004 / 15 © Digital Stock Identification with the Aggressor How Crime Victims Often Cope with Trauma By RYAN E. MELSKY, M.A., J.D.

he notion that a trau- He was too weak to live down the shock of the killing. That’s what he matic experience pro- suspected must be troubling him. A real man could have come out of it in a duces an extreme reac- short time and resumed a normal life. T After all, he had done all he could that night. He had nothing to feel bad tion is an ancient one. When about. Nothing at all. It was easy for some of them to criticize him. To have confronted with serious, often their training classes and criticize him and Ian and say what should have life-threatening situations, been done. crime victims instinctively re- Then he was crying. It was the first time he had cried like this. Karl sort to various cognitive mech- Hettinger sat hunched in his chair and his wet cheeks glistened silver from the light of the television, and his shoulders began heaving and great anisms that allow them to cope shuddering sobs ripped out. He lost control. He wept and the shame of it with their sudden victimiza- made the tears gush hot. There was nothing left, not a shred of self-respect. tion.2 Many people are familiar One day while walking through a department store with O’Lear looking with the more common of these for thieves, he saw a masonry drill he needed. He started to buy it but coping strategies, or “defense instead just put it in his pocket. It was as baffling and inexplicable as the weeping. mechanisms” as psychologists call them, which include regres- —Joseph Wambaugh, The Onion Field1 sion, denial, and repression.

16 / FBI Law Enforcement Bulletin In addition to these, crime victims also can cope with life- threatening trauma by “identify- Identifying with ing” with their aggressor, just as “ the aggressor Karl Hettinger—an officer with has become a the Los Angeles, California, well-documented, Police Department—did after bona fide defense witnessing two thieves murder mechanism. his partner. Identifying with the aggressor has become a well- documented, bona fide defense 3 mechanism. By understanding Sergeant Melsky serves with the Clinton why people often identify with ”Township, New Jersey, Police Department. their aggressors and how this affects future behavior, the law enforcement community can better comprehend the vicissi- fathers. Young girls don their short of total cooperation likely tudes of victimization and, as a mothers’ jewelry and makeup to will result in death. result, provide more effective look like them. Teenagers often In addition to its cognitive victim services, thereby facili- dress in the same type of clothes utility, identification with the tating a healthy recovery for and speak in the same manner aggressor serves an important, crime victims. to identify with their social external function. With this groups. defense mechanism, victims Identification Process make an intuitive prediction The process of identification Identification with Aggressors regarding their aggressors’ occurs when one person forms By identifying with their reactions to the bond.7 Instinc- an emotional bond with another. aggressors, assuming their tively, victims know that if they Introjection then takes place, attributes, and imitating their appease their aggressors, their whereby identifying parties aggression, crime victims chances of survival increase. modify their own personalities cognitively transform them- Aggressors assured that they and physical characteristics in selves from the people threat- are “right” or whose controlling an attempt to imitate the person ened into those making the ideations are bolstered by the they are identifying with.4 Typi- threat.6 This mental transfor- companionship of submissive cally motivated by unconscious mation allows the victim to victims will less likely dispose forces, identifying parties may achieve some feeling of strength of this “positive” reinforcement. not recognize the effects that in an otherwise humiliating In this way, the victim’s iden- identification has on their situation. In short, when an tification has somewhat of a actions.5 aggressor sticks a gun in a per- controlling effect on the aggres- Examples of identification son’s face or kidnaps someone sor. Intuitively, the victim has happen every day, especially in at knifepoint, often the victim’s outsmarted the aggressor. children and teenagers. Little only chance for survival is to From a causal perspective, boys wear toy guns and badges join the aggressor emotionally, some theorize that identification to emulate their police officer as well as physically. Anything with the aggressor results from

August 2004 / 17 the victim’s appreciation for conditions, just as Nazi policies enjoyed her crimes as she acted being allowed to live. When proclaimed.9 under her own free will. abductors threaten to kill vic- In 1973, a bungled bank Many wonder why people tims, they establish intense fear robbery in Stockholm, Sweden, caught up in such situations as in their captives. However, resulted in a prolonged hostage these did not attempt to flee when abductors change their situation. As time wore on, the their captors. This mentality minds and begin to show com- hostages became impatient and reflects a pervasive lack of passion, their victims feel frustrated. As a result, they knowledge regarding the sub- gratitude toward them.8 identified with their captors and jective experience of crime eventually came to assist them victims. This insensibility, in Well-Known Examples against the police. This case turn, serves to revictimize the Karl Hettinger’s troubling prompted the term Stockholm victim. Members of the law postvictimization behavior rep- syndrome.10 enforcement community, as resents one well-known illus- © stockbyte well as society as a whole, must tration of how crime victims realize that the experience of identify with their aggressors. being a crime victim creates a History is full of examples of complex, long-lasting effect how otherwise law-abiding vic- on the person’s cognitive pro- tims bonded with their aggres- cesses. Moreover, these effects sors and subsequently went on are not easily understood. to participate in, or cooperate with, criminal conduct. Long-Term Effects and When Adolf Hitler and Future Considerations other leaders of the Nazi regime In its mildest form, identifi- implemented policies calling for cation with the aggressor is a mass genocide during the 1930s healthy defense mechanism. and 1940s, they recruited un- In what probably represents It allows people to adjust to likely participants to carry out the most well-known case of threatening situations. For their murderous plans in the identification with the aggres- example, a little girl afraid to concentration camps. As a re- sor, Patty Hearst was kid- walk down the dark hallway of sult, many of Germany’s doc- napped, kept blindfolded and her house for fear of meeting a tors were transformed from nude in a closet for several ghost may solve the problem humanistic healers to cold- months, sexually assaulted, and by “booing” her way along the blooded torturers and killers. deprived of food and sleep. corridor.12 Under the threat of their violent Eventually, her abductors freed On the opposite end of the leaders, whether actual or her from her confines and began spectrum, identification with the implied, these educated and to show her compassion.11 aggressor may lead to antisocial accomplished concentration When they did, she joined their or “psychopathic” behavior. camp doctors came to justify bank-robbing escapades. Ac- Although especially true with their crude and pointless counts of Hearst committing continuous victimization over a human experiments as being bank robberies seemed to long period of time beginning necessary under the current portray a young woman who in early childhood,13 a single

18 / FBI Law Enforcement Bulletin life-threatening experience may Rather, just as no one can force reactions of victims of violent be enough. Such was the case a physical wound to heal crime because history has with Karl Hettinger. Obviously, quickly, no one can force a shown that this defense mecha- identifying with an aggressor psychological wound to heal nism has played a role in saving during victimization creates either. In both cases, a person the lives of countless victims. long-term psychological and has to flow with the healing Instead, people should come personality changes likely to process, not fight it.17 to accept what they already last well after the aggressor has What often is overlooked is know—a traumatic experience relinquished control. Sadly, that the healing process begins produces an extreme response. many crime victims, despite with the first law enforcement Understanding this, law en- treatment by competent profes- officer to make contact with the forcement officers and others sionals, remain psychologically victim. Soon after, the victim coming into contact with vic- disabled.14 tims of violent crime can help Coupled with identification these individuals begin the long with the aggressor, a traumatic road to healing, as opposed to experience also may lead to exacerbating the problem by post-traumatic stress disorder No one should revictimizing them. A victim’s (PTSD). In turn, the victim may scrutinize or judge the seemingly odd reaction to the experience amnesia, depression, subjective, complex trauma directly results from or suicidal tendencies, all of “reactions of victims the fact that the person had no which are by-products of PTSD. of violent crime.... choice but to adopt this form of Overall, the traumatic threat behavior. Keeping this foremost imposed on an unwilling victim in mind will serve the public by an aggressor can produce and, most important, crime multiple cognitive and behav- likely will encounter other offi- victims well. ioral abnormalities for the rest cers, detectives, paramedics, of that person’s life.15 nurses, physicians, family mem- Endnotes This does not bode well for bers, prosecutors, judges, ”jurors, 1 Joseph Wambaugh, The Onion Field law enforcement officers, pros- and therapists, to name a few. (New York, NY: Dell Publishing, 1973), ecutors, or therapists working 347. By not judging the victim by 2 with crime victims who have Michael J. Scott and Stephen G. how they think that they would Stradling, Counseling for Post-Traumatic identified with their aggressors. have acted in the situation, these Stress Disorder (Thousand Oaks, CA: In situations where antisocial professionals can resist the Sage Publications, 1992). behavior has resulted, the intra- natural, often subconscious, 3 Anna Freud, The Ego and the psychic identification between tendency to blame the victim. Mechanisms of Defense, vol. 2 (Madison, the victim and the aggressor can CT: International Universities Press, Inc., Conclusion 1966). be so intense that the victim 4 Nandor Fodor and Frank Gaynor, actually will project the aggres- The process of identifying eds., Freud: A Dictionary of Psychoanaly- sion onto those trying to help.16 with their aggressors is a real, sis (Greenwich, CT: Fawcett Publications, This results in an angry, diffi- instinctive phenomenon that 1958). 5 cult victim who resists change. Robert B. Ewen, An Introduction to crime victims often experience. Theories of Personality, 3d ed. (Mahwah, However, this does not No one should scrutinize or NJ: Lawrence Erlbaum Associates, Inc., mean that no hope exists. judge the subjective, complex 1988), 37.

August 2004 / 19 6 Supra note 3, 113. 9 Robert Jay Lifton, The Nazi Doctors: Personality, 5th ed. (Fort Worth, TX: 7 For additional information on the Medical Killing and the Psychology of Harcourt Brace, 1995), 201. intuitive ability to predict violence, see Genocide (New York, NY: Basic Books, 13 J. Reid Meloy, The Psychopathic Gavin De Becker, The Gift of Fear: 1986). Mind: Origins, Dynamics, and Treatment Survival Signals That Protect Us from 10 John Douglas and Mark Olshaker, (Northvale, NJ: Jason Aronson, 1988). Violence (New York, NY: Little, Brown Mind Hunter: Inside the FBI’s Elite Serial 14 Shelley Neiderbach, Invisible and Company, 1997). Crime Unit (New York, NY: Pocket Star Wounds: Crime Victims Speak (Bingham- 8 Vincent J. Schodolski and V. Dion Books, 1995), 82. ton, NY: Harrington Park Press, 1986). Haynes, “Captive Girl’s Actions Hint at 11 Supra note 8, sec. A, p. 4. 15 Supra note 2. Brainwashing,” Easton (PA) The Express- 12 Christopher F. Monte, Beneath the 16 Supra note 13, 52-53. Times, March 16, 2003. Mask: An Introduction to Theories of 17 Supra note 2.

Snapshot

Sea Hunt

he New Hanover Coun- T ty, North Carolina, Sheriff’s Office received a call that a male had shot at and kidnapped his estranged girlfriend at gunpoint, forc- ing his way into her truck on a rural road. Shortly after re- ceiving the call, officers lo- cated an abandoned vehicle that had been operated by the subject along with a firearm. Investigation revealed the identities of the victim and the subject; cellular phone calls to family members by both the victim and the subject verified investigative results. A negotiator with the sheriff’s office emergency response team contacted the victim by telephone and, after several hours, determined the location of the two individuals. On learning the location, both the negotiator and tactical elements of the emergency response team moved into the area. The subject, now driving the truck, attempted to flee but was blocked, so he turned to drive toward the intra-coastal waterway. The victim jumped from the truck, and the subject drove directly into the waterway. The photo depicts members of the sheriff’s office emergency response team deployed on the bow of a U.S. Coast Guard vessel approaching the subject who was partially concealed on the floor of the flooded truck. The subject was removed without incident after approximately 30 minutes; he suffered exposure to the 39-degree water.

20 / FBI Law Enforcement Bulletin Bulletin Reports

Collaboration The National Institute of Justice (NIJ) presents Fighting Urban Crime: The Evolution of Federal-Local Collaboration. Although rare before the mid-1980s, collaboration between federal and local law enforcement has grown rapidly as local police and prosecutors have worked closely with federal authorities to address increased levels of drug trafficking and violent crime. This report examines the rise of federal-local collaboration; the various types of relationships, such as task forces and grant-funded programs; and the advantages collabora- tion offers both local and federal authorities. These partnerships have been characterized by restraint, careful coordination, and shared oper- ational leadership. Researchers found that collaboration has become institutionalized in many U.S. cit- ies and likely will expand in the Reference and Statistics future. This report is available electronically at http://www.ncjrs. Indicators of School Crime and Safety: 2003, a org/pdffiles1/nij/197040.pdf or by joint effort by the Bureau of Justice Statistics and the contacting the National Criminal National Center for Education Statistics, presents up- Justice Reference Service at 800- to-date, detailed data on crime at school (including 851-3420. crime in school and on the way to and from school) from the perspectives of students, teachers, principals, and the general population. Information was gathered from an array of sources, including the National Crime Victimization Survey (1992 to 2001), School Crime Supplement to the National Crime Victimization Sur- vey (1995, 1999, and 2001), Youth Risk Behavior Survey (1993, 1995, 1997, 1999, and 2001), School Survey on Crime and Safety (2000), and School and Staffing Survey (1993 to 1994 and 1999 to 2000). This report is available electronically at http://nces.ed.gov/ pubs2004/2004004.pdf.

Bulletin Reports is an edited collection of criminal justice studies, reports, and project findings. Send your material for consideration to: FBI Law Enforcement Bulletin, Room 201, Madison Building, FBI Academy, Quantico, VA 22135. (NOTE: The material in this section is intended to be strictly an information source and should not be considered an endorsement by the FBI for any product or service.)

August 2004 / 21 Legal Digest U.S. Land Border Search Authority By M. Wesley Clark, J.D., LL.M.

©PhotoDisc

he need to safeguard actual border, at the functional standard) or as a species of U.S. borders has drawn equivalent of the border, at the search wholly outside the T 1 more attention recently extended border, or during the Fourth Amendment. than ever before. The law tradi- course of roving border patrols. A true border search can be tionally has recognized that sig- made without probable cause, nificant public safety interests ACTUAL BORDER without a warrant, and, indeed, are at stake when it comes to The state of the law with without any articulable suspi- safeguarding America’s bor- respect to suspicionless cion at all.2 The only limitation ders. This has translated into a searches conducted at actual, or on such a search is the Fourth unique body of law that permits “true,” U.S. borders is the most Amendment stricture that it be the government to exercise straightforward and most easily conducted reasonably. Note that broad search authority at the understood. Such searches have the reasonableness calculus is border to safeguard the public. been described as either excep- different at the border (i.e., This article discusses the con- tions to the Fourth Amend- looser) than it is inland.3 Of tours of land border search law, ment’s warrant and probable course, the experience and including a discussion of the cause requirements (leaving training of law enforcement role the actual site of the search them subject only to the personnel must be the lens plays, whether the site is at the amendment’s reasonableness through which all of the facts

22 / FBI Law Enforcement Bulletin giving rise to concern on the part of the officer or agent at the border are viewed.4 The law has “...significant public developed a sliding scale with safety interests are regard to border searches—as at stake when it the degree of intrusiveness comes to increases, so does the require- safeguarding ment for indicia of suspicion. America’s borders. Routine Border When crossing the border into the United States, a travel- Mr. Clark is a senior attorney in the Domestic er’s luggage, conveyance, outer Criminal” Law Section, Office of Chief Counsel, DEA. clothing, purse, wallet, and pockets are subject to suspicion- less (i.e., routine) inspection.5 When inspecting luggage, it is Nonroutine Border reasonable suspicion.11 Inserting permissible as part of a routine a long, thin metal probe in the search to scratch the exterior to Drilling/Destructive/ drain valve of an electrical determine if the luggage shell Disruptive transformer awaiting customs vibrates (lack of vibration Invasive measures designed clearance has been held proper would be abnormal), to flex the to reveal the nature of the con- because the search was based luggage exterior (lack of flex tents of a container, such as a upon reasonable suspicion.12 In would be abnormal), and to heft suitcase or steel drum used for summary, at the border, reason- the luggage to see whether it is shipping materials, require able suspicion justifies a full- equally weighted (unexplained some level of justification to scale search that employs weight might suggest a hidden comply with the Fourth Amend- reasonable means.13 compartment containing ment. For example, drilling into However, a nondestructive contraband).6 the bottom of a traveler’s bag search taking only 1 to 2 hours because it had an unusual at the border that involves only Pat Downs and Exposures bottom is not a routine search dismantling and reassembly, Pat downs and requests, and, therefore, requires reason- such as the removal, inspection, for example, to raise a skirt to able suspicion.9 Similarly, once and reattachment of a vehicle reveal an undergarment may be reasonable suspicion arose, gas tank (a reversible procedure considered to fall–depending drilling into a vessel to reveal that does not threaten vehicle upon the circuit–somewhere cocaine hidden in a secret safety or operation), requires no between the suspicionless compartment was a proper suspicion. In United States v. border search7 and such non- reasonable means of effectuat- Flores-Montano,14 an inspector routine border examinations as ing a border search.10 Drilling tapped a station wagon gas tank, strip and body cavity searches.8 into a metal cylinder arriving at “noted that the tank sounded Therefore, these may require an international airport in the solid,” and had a mechanic some level of suspicion, albeit United States, not a routine on contract with the U.S. Cus- minimal. search, must be based upon toms Service remove the tank.

August 2004 / 23 Conducting a search involving invasiveness visited upon the needs no more than reasonable neither serious damage or detainee must be weighed.21 suspicion,26 although more is destruction, the inspector then A strip search, for example, required in the Ninth Circuit—a “hammered off bondo (a putty- requires “‘reasonable’ or ‘real’ clear indication or plain sugges- like hardening substance used suspicion, directed specifically tion.27 A physical body cavity to seal openings) from the top to [the] person[.]”22 Note, how- inspection at the border also of the gas tank[,]... opened an ever, that the continuing viabil- must be based upon reasonable access plate underneath the ity of the real (as opposed to suspicion28 or, within the Ninth bondo and found 37 kilograms reasonable) suspicion and other and Fifth Circuits, upon a clear of marijuana bricks.”15 The tests (discussed below)23 devel- indication that contraband is Supreme Court ruled that under oped by the Ninth Circuit are in being hidden in a body cavity.29 these circumstances, no level of suspicion is needed to justify Detention at the Border the search inasmuch as it and Detaining someone at the others similarly conducted at The degree of border for a period longer than the border are inherently “rea- invasiveness visited that necessary for a routine sonable simply by virtue of the upon the detainee inspection is justified if based fact that they occur at the must be weighed. on reasonable suspicion that the 16 “ would-be entrant, for example, border.” Unfortunately, the Flores-Montano decision is “smuggling contraband in her deliberately left unaddressed alimentary canal.”30 Once the whether more invasive or serious doubt given the 1985 decision is made to detain lengthier searches, such as Supreme Court decision in someone, the next issue be- potentially destructive drilling, United States v. Montoya de comes the length of time the also can be conducted without Hernandez,24 which “rejected person may be detained. There 17 the Ninth Circuit’s view that” is no “bright-line” solution as any suspicion whatsoever. Similar to drilling for pur- there exists a ‘clear indication’ each case is judged by its poses of detecting the contents standard, intermediate between unique set of facts, and a deter- of a container, the relatively ‘reasonable suspicion’ and mination whether continued low reasonable suspicion stand- ‘probable cause,’ applicable detention is reasonable is ard is the level of proof required when a seizure of a traveler reached in light of all of those for involuntary x-rays,18 except, persists beyond a routine border facts.31 Courts recognize that perhaps, in the Ninth Circuit.19 search.”25 the time for which a suspect is Indeed, it even can be argued Body cavity searches are the held often is lengthened by the that x-rays, particularly at most intrusive and personal suspect’s own behavior, which, airports, are routine.20 types of searches. Accordingly, in balloon-swallowing cases, a higher standard sometimes is can involve refusal to eat, drink, Strip imposed on the government to excrete, submit to x-rays, or When a search more inva- conduct such searches, whether take laxatives.32 Many cases sive than a routine inspection they are conducted visually begin with detentions that ripen is conducted at the border, or by way of a physical into arrests. When the entire additional requirements are examination. A visual examina- restraint period is considered imposed. The degree of tion of body cavities generally (periods of detention plus

24 / FBI Law Enforcement Bulletin arrest), care must be taken to where it first arrives if there is from someone knowledgeable present the facts to a magistrate reasonable cause to suspect its in the applicable circuit case judge in a timely fashion. Fail- contents are being unlawfully law: “[T]he constitutional ing to do so may result in mo- introduced into the country.36 necessity of the statutory re- tions for sanctions against the Indeed, the Fourth Amendment quirement of reasonable suspi- government. In one reported permits the inspection of items cion for a search of international decision, a balloon-swallowing crossing the border without any mail is unsettled; many lower defendant argued that his deten- suspicion.37 The area of the law courts, however, have upheld tion actually had ripened into an with regard to mail crossing the spot-checks of international arrest, that consequently he had border has been overlaid, mail conducted without particu- not been provided “with the however, with statutory and larized suspicion.”41 Note that procedural protections required regulatory provisions, which both the functional equivalent for warrantless arrests,” and, seemingly provide additional and extended search doctrines therefore, his incriminating may apply to both incoming and statements made after the outgoing mail or its substitute “arrest” should be suppressed.33 (e.g., commercial express Although the appellate panel mail).42 had no trouble dismissing the defendant’s argument,34 it estab- FUNCTIONAL lished a rule applicable in the EQUIVALENT Fifth Circuit that when balloon “Under the ‘functional swallowers are detained, the equivalent’ doctrine, routine government “must seek a border searches are constitution- judicial determination, within a ally permissible at places other reasonable period, that reason- than actual borders where able suspicion exists to support travelers frequently enter or exit the detention.” This can be protection to sealed letter class the country.”43 Examples of done, the court added, by mak- mail. In such cases, “reasonable functional equivalent borders ing an ex parte presentation to cause to suspect the presence include airports within the a magistrate judge. If this is of...contraband”38 must be United States where interna- not done within 48 hours, the established. This standard is not tional flights depart or first judges warned that the “burden” difficult to meet. For example, land44 and at an “established shifts “to the government to little more than the recognition station near the border, at a demonstrate a bona fide emer- that the letter class mail origi- point marking the confluence of gency or extraordinary circum- nated from a drug source coun- two or more roads that extend stance justifying the lengthier try establishes reasonable from the border.”45 Of course, delay.”35 cause.39 Some courts have this means that those traveling bypassed the reasonable cause by vehicle “may be stopped at Mail requirement by using a separate fixed checkpoints near the All mail arriving from over- statutory provision that has no border without individualized seas certainly may be opened threshold proof requirement.40 suspicion even if the stop is without a warrant at the postal As the law in this area is con- based largely on ethnicity.”46 facility in the United States fused, it is best to seek guidance Additionally, “boats on inland

August 2004 / 25 waters with ready access to the between probable cause and (INS)55 has the power to search sea may be hailed and boarded beyond a reasonable doubt.52 any vehicle located “within a with no suspicion whatever.”47 Regarding the second prong reasonable distance from any The first point inside the United of the test, key to concluding external boundary of the United States where a ship arriving whether or not there has been States” without a warrant. A from outside the country docks any change in the luggage, reasonable distance is defined is another example of a border conveyance, or any other item, as “within 100 air miles from functional equivalent.48 The key because it crossed the border are any external boundary of the feature of a border functional factors including “the time and United States.” However, such equivalent, then, is that it is “the distance from the original entry a yardstick is not necessarily first point at which an entrant and the manner and extent of determinative. “It is clear, of may practically be detained.”49 surveillance.”53 The signal course, that no Act of Congress can authorize a violation of the EXTENDED BORDER Constitution.”56 Despite the “The extended border doc- statute and regulation, the trine provides that non-routine Supreme Court refused to border searches that occur near ...only those federal condone a suspicionless Border the border are deemed constitu- officers with customs Patrol vehicle search 25 air tionally permissible if reason- or immigration miles north of the border with able under the Fourth Amend- enforcement“ authority, Mexico that resulted from a ment,” something which is or those acting under roving patrol. Note that a rov- determined by a three-part test, their supervision, may ing patrol does not keep the “whether 1) there is a reason- conduct border suspect or suspect conveyance able certainty [or a high degree under nearly continuous surveil- of probability] that a border searches. lance from the point where the crossing has occurred; 2) there actual border was crossed. “In is a reasonable certainty that no the absence of probable cause change in the condition of the or consent, the search violated luggage [i.e., the item or person characteristic that differentiates the...Fourth Amendment right to be examined] has occurred the extended border search from to be free of ‘unreasonable since the border crossing; and 3) one conducted at the border’s searches and seizures.’”57 The there is a reasonable suspicion functional equivalent is that” the Court continued, quoting from that criminal activity has oc- first “takes place after the first one of its earlier opinions, that curred.”50 This three-part test point in time when the entity “those lawfully within the becomes necessary in an ex- might have been stopped within country, entitled to use the tended border search context the country.”54 Significantly, a public highways, have a right because it “entails greater proper extended border like a to free passage without inter- intrusion on an entrant’s legiti- functional equivalent search ruption or search unless there mate expectation of privacy may take place without either a is known to a competent offi- than does a search conducted warrant or probable cause. cial, authorized to search, at the border or its functional probable cause for believing equivalent[.]”51 What, however, ROVING PATROLS that their vehicles are carry- is reasonable certainty? This is By statute, the Immigration ing contraband or illegal a proof threshold that lies and Naturalization Service merchandise.”58

26 / FBI Law Enforcement Bulletin Not only may searches away suspicion that the vehicles authority. Indeed, the govern- from the border or its func- contain aliens who may be ment could not even make a tional/extended equivalent not illegally in the country.62 claim that the FBI agent is a be conducted absent probable In sum, away from the person ‘authorized to board cause or consent, neither may actual, functional equivalent, or search vessels’ within brief stops59 be effected absent or extended border, traditional Section 48264 or that cus- reasonable suspicion. In 1973, Fourth Amendment concepts toms authority has been the Border Patrol stopped a car apply to both searches and delegated to him. The FBI below San Clemente, Califor- seizures. Put differently, so- agent surpassed his author- nia, and away from the U.S.- called roving patrols enjoy no ity.... He acted for general Mexican border solely because special Fourth Amendment law enforcement purposes, all three of its occupants “ap- treatment, nor do they fall under not for enforcement of peared” to be of “Mexican any special exception to the customs laws[.]...Congress descent.”60 The government reasonableness requirement. and the courts have specifi- relied on the INS statutory and © Digital Stock cally narrowed the border regulatory to support its posi- searches to searches con- tion that it had the authority to ducted by customs officials stop vehicles in the border area in enforcement of customs solely for the purpose of deter- laws.65 mining whether the occupants Additionally, the FBI agent were legally in the United had not been acting in concert States. As before, the Border with customs officials66 nor had Patrol was disappointed before the agent been cloaked with the Supreme Court. Al-though customs authority as, for ex- recognizing the serious illegal ample, by a cross-designation immigrant problem along the of customs powers. The Ninth southwest border, the Court Circuit has said statutes, such nevertheless concluded that as the one granting customs “[t]he Fourth Amendment BORDER SEARCH officials their powers, “repre- applies to all seizures of the AUTHORITY sent special designations of person, including seizures that As a general rule, only those authority to them to conduct involve only a brief detention federal officers with customs border searches. That authority 61 short of traditional arrest.” or immigration enforcement also has been extended to The Court went on to expand authority,63 or those acting immigration authorities and its remarks, noting under their supervision, may Coast Guard officials”67 and, [e]xcept at the border and its conduct border searches. Drug conspicuously by omission, to functional equivalents, offi- evidence uncovered by an FBI no other federal law enforce- cers on roving patrol may agent who was searching ve- ment personnel. The court stop vehicles only if they are hicles entering the United States added that aware of specific articulable from Mexico to determine if Congress has given the facts, together with rational they were stolen was suppressed authority to conduct border inferences from those facts, because he was not cloaked searches only to this limited that reasonably warrant with statutory border search group of officials and has

August 2004 / 27 charged them with the sion of federal agents who have 5 United States v. Braks, 842 F.2d 509, 514 (1st Cir. 1988); United States v. Asbury, 586 exclusive responsibility for such authority. Of course, F.2d 973, 975 (2d Cir. 1978); Henderson v. inspecting goods and per- benefits from this authority also United States, 390 F.2d 805, 808 (9th Cir. sons crossing the borders may arise through close coordi- 1967); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.5(a) and for interdicting illegal nation of investigations and the (3d ed. & Supp. 2004). Note that there are cases entries. Searches conducted sharing of information. that suggest that some level of suspicion, albeit by other law enforcement less than probable cause, is required for a Endnotes agents are not considered routine border search, see, e.g., United States 1 William E. Ringel, Searches & Seizures, v. Bilir, 592 F.2d 735, 739 (4th Cir. 1979) (reasonable cause); United States v. Rodriguez- border searches and must Arrests and ConfessionS § 15.1 (Justin D. therefore meet the tradi- Franklin & Steven C. Bell 2d ed. Supp. 2003). Gonzalez, 378 F.2d 256, 258 (9th Cir. 1967) 2 United States v. Cardona, 769 F.2d 625, (unsupported or mere suspicion). This view is, tional demands of the of course, incorrect and flies in the face of the 68 628 (9th Cir. 1985); United States v. Turner, Fourth Amendment. If 639 F. Supp. 982, 986 (E.D.N.Y. 1986). primary reason why routine border searches are there is to be a delegation or 3 United States v. Montoya de Hernandez, permitted, indeed, necessary: “the ‘primordial’ national interest in protecting the borders cross-designation of, for 473 U.S. 531, 538 (1985)(“[T]he Fourth Amendment’s balance of reasonableness is against violation by illegal importations.” example, customs authority, qualitatively different at the international border Bilir, 592 F.2d at 739 (citation omitted). Note, it will not be valid unless than in the interior” and “not only is the too, that border searches can be conducted with expectation of privacy less at the border than in respect to persons and items (including mail) clearly made, such as by the interior, the Fourth Amendment balance leaving the United States, United States v. 69 written agreement or, if in between the interests of the government and the Whiting, 781 F.2d 692, 695 (9th Cir. 1986) the heat of an enforcement privacy right of the individual is also struck (citations omitted); Turner, 639 F. Supp. at much more favorably to the government at the 986. 70 6 operation, verbally. Del- border.” Id. at 539-40 (citations omitted)). United States v. Johnson, 991 F.2d 1287, egations of federal customs 1292-93 (7th Cir. 1993). 7 “[E]xamination of a person by ordinary pat authority may be made by down or frisk, the requirement that outer designation to other than garments, such as coat or jacket, hat or shoes be federal personnel, such as to removed, that pockets, wallet or purse be ...a proper extended emptied are part of the routine examination of a state or local law enforce- border like a person’s effects, which require no justification ment personnel.71 Personnel other than the person’s decision to cross our assisting and under the functional equivalent national boundary.” United States v. Ramos, search may take place 645 F.2d 318, 322 (5th Cir. 1981); Oyekan, 796 supervision of customs “ F.2d at 835 (pat down is “within the scope of officials at the border, such without either a routine customs practice unrestricted by the 72 warrant or probable Fourth Amendment)(citations omitted); United as National Guard soldiers States v. Aguebor, No. 98-4258, 1999 WL or even nongovernment cause. 5110, at *3 (4th Cir. Jan. 4, 1999)(unpub- individuals,73 may conduct lished); United States v. Carreon, 872 F.2d 1436, 1442 (10th Cir. 1989); United States v. border searches. Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir.), cert. denied, 469 U.S. 1088 (1984). But see CONCLUSION 4 United States v. Vega-Barvo, 729 F.2d United States v. Brown, No. 00 CR 407, 1341, 1350 (11th Cir.), cert. denied, 469 U.S. 2000WL 33155619, at *4 (N.D. Ill. Dec. 8, Border search authority is an 1088 (1984)(“Many of the factors supporting 2000)(minimal level of suspicion present to important weapon in the law reasonable suspicion will seem innocent conduct pat down “assuming that some enforcement arsenal. However, enough if evaluated independently and without heightened level of suspicion was required”); the expertise of an experienced customs” United States v. Vance, 62 F.3d 1152, 1156 to lawfully exercise such pow- inspector.”) But, what is reasonable suspicion? (9th Cir. 1995)(pat down at border requires ers, a law enforcement officer “A reasonable suspicion consists of a minimal suspicion)(citations omitted); United must be acting under a clear ‘particularized and objective basis for States v. Dorsey, 641 F.2d 1213 (7th Cir. suspecting the particular person’ of smuggling.” 1981)(pat down is more than a routine search so delegation of authority or acting United States v. Oyekan, 786 F.2d 832, 836 some unspecified level of suspicion, depending under the direction and supervi- (8th Cir. 1986)(citations omitted). on the facts of each case, is required).

28 / FBI Law Enforcement Bulletin 8 Pat downs and requests to reveal reasonable. [W]e have isolated three factors a) excessive nervousness; b) unusual conduct; underclothing are routine border searches; body which contribute to the personal indignity c) informant’s tip; d) computerized information cavity and strip searches are not and, therefore, endured by the person searched: 1) physical showing “pertinent criminal propensities”; e) require reasonable suspicion before they may be contact between the searcher and the person loose-fitting or bulky clothing; f) “an itinerary conducted, Braks, 842 F.2d at 512-13. searched; 2) exposure of intimate body parts; suggestive of wrongdoing”; g) whether 9 United States v. Aragon, 155 F.3d 561, and 3) use of force.”) After examining decisions incriminating evidence is discovered during the 1998 WL 454085, at *2 (4th Cir. Jul. 28, by the Supreme Court, as well as by sister routine aspect of the search; h) no employment 1998)(unpublished). appellate courts, the First Circuit identified or a claim of self-employment; i) indications of 10 United States v. Puig, 810 F.2d 1085, seven factors for determining the degree of drug use, such as needle marks; j) information 1087 (11th Cir. 1987)(because reasonable search invasiveness in and around the border: obtained as a result of search/conduct of suspicion existed, the Supreme Court elected “(i) whether the search results in the exposure traveling companion; k) inadequate luggage; not to pursue whether a lower suspicion of intimate body parts or requires the suspect and l) evasive or contradictory responses. standard would have sufficed to justify to disrobe; (ii) whether physical contact Asbury 586 F.2d at 976-77. Vance, 62 F.3d at drilling); see also United States v. Moreno, 778 between...officials and the suspect occurs 1156 (real suspicion required for strip search); F.2d 719, 721 (11th Cir. 1985)(inserting probes during the search; (iii) whether force is used to Quintero-Castro, 705 F.2d 1099, 1100 (9th Cir. into holes drilled by customs officials into effect the search; (iv) whether the type of search 1983)(same). vessel fuel tanks followed by use of electric saw exposes the suspect to pain or danger; (v) the 23 The Ninth Circuit’s clear indication or to uncover hidden compartments proper given overall manner in which the search is plain suggestion test, discussed infra with the existence of ample reason). conducted; and (vi) whether the suspect’s regard to body cavity searches, is similarly 11 United States v. Robles, 45 F.3d 1, 5 (1st reasonable expectations of privacy, if any, are called into question. Cir.), cert. denied, 514 U.S. 1043 (1995). abrogated by the search.” Braks, 842 F.2d at 24 437 U.S. 531 (U.S. 1985). See also the 12 United States v. Villabona-Garnica, 63 512 (citations omitted). Ninth Circuit’s own post-Montoya de F.3d 1051, 1057 (11th Cir. 1995), cert. denied, Hernandez opinion, United States v. Gonzalez- © Mark C. Ide 517 U.S. 1114 and 1126 (1996). Rincon, 36 F.3d 859, 864 (9th Cir. 1994)(“Strip 13 United States v. Sarda-Villa, 760 F.2d searches and body cavity searches...must be 1232, 1237-38 (11th Cir. 1985)(use of ax and supported by reasonable suspicion.”). crowbar to pry up boat deck to reveal hidden 25 Oyekan, 786 F.2d at 836 (citation compartment containing contraband was omitted). reasonable means and thus permissible 26 United States v. Himmelwright, 551 F.2d procedure given presence of reasonable 991, 995 (5th Cir.), cert. denied, 434 U.S. 902 suspicion); Carreon, 872 F.2d at 1440-41 (use (1977). of drill on camper shell affixed to pickup truck 27 Henderson, 390 F.2d at 808. See also was based on reasonable suspicion; evidence LaFave, supra note 5 at § 10.5(b). Reasonable uncovered from hidden compartment held suspicion sufficient to justify visual inspection admissible). of body cavity (vagina), Himmelwright, 551 14 No. 02-1794, 2004 WL 609791 (U.S. F.2d at 995. Mar. 30, 2004). 28 United States v. Ogberaha, 771 F.2d 655, 15 Id. at *2. Arguably, the tapping of the 658 (2d Cir. 1985), cert denied, 474 U.S. 1103 tank by the inspector provided him with (1986)(reasonable suspicion contraband being reasonable suspicion. concealed internally; invitation to adopt Ninth 16 Id. at *3 (citation omitted). Circuit’s clear indication standard, lying 17 Id. at *4 n.2. 22 United States v. Aguebor, No. 98-4258, somewhere between reasonable suspicion and 18 Oyekan, 786 F.2d at 837; United States v. 1999 WL 5110, at *3 n.2 (4th Cir. Jan. 4, 1999) probable cause, rejected); United States v. Mejia, 720 F.2d 1378, 1381-82 (5th Cir. 1983). (unpublished)(Noting that the Supreme Court Handy, 788 F.2d 1419, 1420-21 (9th Cir. 19 United States v. Shreve, 697 F.2d 873, “flatly rejected” the clear indication test); 1986); Gonzalez-Rincon, 36 F.3d at 864. 874 (9th Cir. 1983); United States v. Ek, 676 United States v. Smith, 557 F.2d 1206, 1208 29 United States v, Mastberg, 503 F.2d 465, F.2d 379, 382 (9th Cir. 1982)(as with body (5th Cir. 1977)(9th Cir. real suspicion test 471 (9th Cir. 1974); Quintero-Castro, 705 cavity search, clear indication or plain “expressly rejected” in favor of reasonable sus- F.2d at 1100. See also United States v. suggestion required); United States v. Quintero- picion test); see also United States v. Adekunle, Himmelwright, 406 F. Supp. 889, 892 (S.D. Castro, 705 F.2d at 1100. 980 F.2d 985, 987-88 (5th Cir. 1992), cert. Fla. 1975), aff’d, 551 F.2d 991 (5th Cir.), cert. 20 Johnson, 991 F.2d at 1293 (contention denied, 508 U.S. 924 & 955(1993); Oyekan, denied, 434 U.S. 902 (1977). that x-ray of suitcase at airport was nonroutine 786 F.2d at 837 (reasonable suspicion required 30 Montoya de Hernandez, 473 U.S. at 541. is “a proposition that we believe lacks merit”). for strip search). For a discussion of the real The alimentary canal is the “mucous mem- 21 Vega-Barvo, 729 F.2d at 1346 versus reasonable suspicion standards used, brane-lined tube of the digestive system, (“[I]ndignity analysis pervades the border respectively, by the Ninth and other circuits extending from the mouth to the anus and search cases throughout the other circuits.... We (including the Fifth) to justify a strip search, see including the pharynx, esophagus, stomach, hold...that personal indignity suffered by the Asbury, 586 F.2d at 976-77. Circumstances that and intestines.” Webster’s II New Riverside individual searched controls the level of factor into this real/reasonable suspicion analy- University Dictionary 92 (1988). The defendant suspicion required to make the search sis, according to the Asbury panel, include in Montoya de Hernandez had swallowed 88

August 2004 / 29 cocaine-filled balloons, which, after refusing to at 980 F.2d 985 (1992), cert. denied, 508 U.S. by another section of the customs laws, 19 be x-rayed, she passed while detained by U.S. 924 & 955 (1993). U.S.C.A. § 1582, and the regulations thereun- Customs for 16 hours prior to her arrest, a 34 “A defendant has no constitutional right der.... The courts have long held warrantless period that the Supreme Court said was to be arrested at the point when either he or the border searches, including mail searches, reasonable under the circumstances. For other court deems that there is sufficient probable reasonable, without ‘probable cause’ or any cases involving upheld detention periods of cause for his arrest. Law enforcement officials ground for ‘suspicion.’”). But see DeVries v. balloon-swallowing defendants, all post- are ‘not required to guess at their peril the Acree, 565 F.2d 577, 579 (9th Cir. 1977), Montoya de Hernandez, see United States v. precise moment at which they have probable overruled by United States v. Taghizadeh Onumonu, 967 F.2d 782 (2d Cir. 1992)(83 cause to arrest a suspect.’ Such a requirement (Taghizadeh II), 41 F.3d 1263 (1994)(“Nothing condoms, x-ray refused, 4-day detention prior would punish the cautious officer who errs on in either the language or the legislative history to arrest); United States v. Yakubu, 936 F.2d the side of protecting a defendant’s rights by [of 19 U.S.C. § 1582] suggests that this statute 936 (7th Cir. 1991)(82 balloons, x-ray refused, requiring a stronger showing of probable cause was related to searches of international mail.”). 20-hour detention period prior to arrest); United that the court might deem necessary.” Taghizadeh II concerned the search of an States v. Odofin, 929 F.2d 56 (2d Cir.), cert. Adekunle, 2 F.3d at 561 (citations omitted). incoming package containing opium from denied, 502 U.S. 850 (1991)(at least four 35 Adekunle, 2 F.3d at 562 (citations Turkey; the Ninth Circuit, in an en banc balloons, x-ray and effective laxatives refused, omitted). decision, determined that § 482 was inappli- last 19 of 24-day detention under judicial 36 United States v. Ramsey, 431 U.S. at 606, cable concluding that § 1582 applied and that it supervision, first 5 were not); United States v. 611-12; 19 U.S.C. § 482(a); 19 C.F.R. § authorized suspicionless “customs searches of Esieke, 940 F.2d 29 (2d. Cir.), cert. denied, 502 145.3(a). packages arriving at the border from a foreign U.S. 992 (1991)(63 balloons, x-ray refused, 37 Ramsey, 431 U.S. at 616-21. country.” Taghizadeh II, at 1265. However, in 3-day detention); United States v. Adekunle, 38 19 C.F.R. § 145.3(a) (emphasis added). United States v. Taghizadeh (Taghizadeh III), 980 F.2d at 987-88 (defendants detained 2 days More fully, 19 C.F.R. § 145.3(a) provides that 87 F.3d 287 (1996), the Ninth Circuit reached until first balloons excreted, then arrested; “Customs officers and employees may open and the tortured conclusion that the reasonable detention permitted until bowel movements); examine sealed letter class mail...which appear cause requirement of 19 C.F.R. § 145.3(a) was Oyekan, 786 F.2d at 836 (reasonable suspicion to contain matter in addition to, or other than, one of the regulatory provisions implementing required to detain after initial, routine correspondence, provided they have reasonable 19 U.S.C. § 1582 and that reasonable cause examination). Given their proximity to Mexico, cause to suspect the presence of merchandise or applied in this case but that the facts estab- the Fifth and Ninth Circuits receive a large contraband.” (emphasis added). lished were sufficient to satisfy that standard. number of balloon-swallower cases. 39 In United States v. Taghizadeh, 87 F.3d 41 Ringel, supra note 1 at § 15.2(d) None too helpfully, the Supreme Court said 287 (9th Cir. 1996), the fact that a package sent (citations omitted). in an aside that “[i]t is important to note what letter class from Turkey, a source country, 42 Cardona, 769 F.2d at 629. we do not hold. [W]e suggest no view on what coupled with the fact that it was addressed to 43 United States v. Yang, 286 F.3d 940, level of suspicion, if any, is required for a post office box satisfied this requirement. 944 (7th Cir. 2002)(emphasis added, citation nonroutine border searches, such as strip, body “[O]nce suspicion is triggered by source omitted)(nonstop flight from Laos and Tokyo, cavity, or involuntary x-ray searches.” Montoya country origin, not much else is required to Japan, landed in the United States at Chicago’s de Hernandez, 473 U.S. at 541 n.1. As noted justify a search.” Id. at 290. Sealed letter class O’Hare Airport). above, lower courts have filled in the gaps mail is “letter class mail sealed against postal 44 Id.; see also United States v. Duncan, 693 with regard to strip and body cavity searches. inspection by the sender.” 19 C.F.R. § 145.1(c). F.2d 971, 976-77 (9th Cir. 1982), cert. denied, 31 “We have said that border stops and And, what is letter class mail? It consists of 461 U.S. 961 (1983)(defendant properly searches must be reasonable and that what is “any mail article, including packages, post stopped by U.S. Customs after he left airline reasonable will depend on all the facts of a cards, and aerogrammes, mailed at the letter waiting area and was “proceeding up the ramp particular case.” Asbury, 586 F.2d at 976 rate or equivalent class or category of postage.” to board a plane bound for Bogota, Colombia.... (citation omitted). 19 C.F.R. § 145.1(b). For a list of factors It is enough that the passenger manifest a 32 “Our prior cases have refused to charge contributing to or even establishing the definite commitment to leave the United States police with delays in investigatory detention presence of reasonable cause, see 43 Fed. Reg. and that the search occur in reasonable temporal attributable to the suspect’s evasive actions.... 14,455-56 (1978). and spatial proximity to the departure. [B]y Respondent’s detention was long, uncomfort- 40 19 U.S.C. § 1582 “The secretary of the checking his luggage, passing through the able, indeed, humiliating; but both its length treasury may prescribe regulations for the airline checkpoint, obtaining a boarding pass, and its discomfort resulted solely from the search of persons and baggage...; and all and proceeding up the ramp [defendant] had method by which she chose to smuggle illicit persons coming into the United States from manifested a definite commitment to leave the drugs into this country.” Montoya de foreign countries shall be liable to detention and country” Id. at 977); Ramos, 645 F.2d at 320 Hernandez, 473 U.S. at 543-44 (citations search by authorized officers or agents of the (airport suspect had left customs area servicing omitted). “We further note our deference to government under such regulations” (emphases deplaning international passengers and was not the expertise and ‘common sense’ of trained added). See, e.g., United States v. Pringle, 576 accosted until 30 minutes later in airport lobby customs inspectors.” Ogberaha, 771 F.2d at F.2d 1114, 1116 (5th Cir. 1978)(“We need not after having checked in at airport hotel; held: 658. decide whether such [19 U.S.C. § 482] functional equivalent of the border, a determi- 33 United States v. Adekunle, 2 F.3d 559, ‘reasonable cause to suspect’ existed in the nation reached upon considering two factors: 561 (5th Cir. 1993), revising previous opinion present case, for we find this search justified 1) degree to which traveler “has been

30 / FBI Law Enforcement Bulletin assimilated into the mainstream of domestic Customs; and 3) there is no evidence that was the opportunity to obtain contraband after activity” and 2) whether the weight of the anyone has tampered with the goods while in the border crossing is insufficient to controvert evidence indicates that the seized contraband transit.” Id. at 1114; United States v. Moreno, the facts established by the government.” Id. crossed the border) Id.; United States v. 778 F.2d 719, 721 (11th Cir. 1985). A ship- at 1152, quoting from Ramos, 645 F.2d at 321 Palmer, 575 F.2d 721, 723 (9th Cir.), cert. ment under a customs bond/seal until the point (30-minute break in surveillance does not denied, 439 U.S. 875 (1978)(suspect departed of actual customs inspection is another example defeat application of extended border search airport customs area and stopped at baggage of a functional equivalent search, United States doctrine). Note that some courts may be claim, a location still considered to be at the v. Sheikh, 654 F.2d 1057, 1069-70 (5th Cir. confusing functional equivalent and extended border); Johnson, 991 F.2d at 1290; United 1981), cert. denied, 455 U.S. 991 (1982); cf. border searches. “The ‘functional equivalent’ States v. Ivey, 546 F.2d 139, 144 (5th Cir. United States v. Gallagher, 557 F.2d 1041 (4th subcategory includes searches made at points 1977)(local Florida airport where private plane Cir.), cert. denied, 434 U.S. 879 (1977). inland of national borders under circumstances landed after flight from the Caribbean is border 49 United States v. Cardenas, 9 F.3d 1139, other than continuous surveillance that functional equivalent). 1147 (5th Cir. 1993), cert. denied, 511 U.S. guarantee preservation of border-crossing 45 United States v. Almeida-Sanchez, 413 1134 (1994)(emphasis added). conditions at the point of search. The under- U.S. 266, 272-73 (1973). 50 Yang, 286 F.3d at 945 (emphases added; lying principle that permits them to be treated 46 Montoya de Hernandez, 473 U.S. at 538 citations omitted). Of course, one can substitute as border searches is thus the same as that for (emphasis added; citation omitted). whatever “container” is at issue for the term extended border searches. Courts may in fact 47 Id. (citation omitted); see 19 U.S.C. § luggage. See also United States v. Espinoza- be using the terms interchangeably.” Bilir, 592 1467, which provides that “[w]henever a vessel Seanez, 862 F.2d 526, 531 (5th Cir. 1988). The F.2d at 742 n.11. from a foreign port or place...arrives at a port or third prong of the extended border test, 54 Cardenas, 9 F.3d at 1148 (original place in the United States..., the appropriate reasonable suspicion of criminal activity, can emphasis). There is one characteristic that customs officer for such port or place may...for arise from a number of factors, to include: “1) routine border, border functional equivalent, the purpose of assuring compliance with any characteristics of the area in which the vehicle and extended border searches all have in law, regulation, or instruction..., cause is encountered; 2) proximity to the border; 3) common: the person, conveyance, or item to be inspection, examination, and search to be made usual patterns of traffic on the road; 4) previous searched “brings the border with it to the point of the persons, baggage, and merchandise experience with alien traffic; 5) information of the search.” Id. at 1149 (internal quotation discharged or unladen from such vessel....”; see about recent illegal crossings in the area; 6) marks and citations omitted). also 19 U.S.C. § 1581. Note further that 19 behavior of the driver; 7) appearance of the 55 INS enforcement functions have since C.F.R. § 162.6 specifies in pertinent part that vehicle; and 8) number, appearance, or been transferred to the U.S. Department of “[a]ll persons, baggage, and merchandise behavior of passengers.” Espinoza-Seanez, Homeland Security (DHS), and the statute has arriving in the customs territory of the United supra at 531; see also Cardenas, 9 F.3d at not yet been updated to reflect this change. 8 States from places outside thereof are liable to 1148; cf. Cardona, 769 F.2d at 629 (totality of U.S.C. § 1357(a)(3). The Border Patrol now inspection and search by a customs officer.” circumstances test adopted for extended border falls under the Bureau of Customs and Border See also 19 C.F.R. § 162.3. Marine “border searches)(citations omitted). Protection (CBP) at DHS. searches” are generally outside the scope of this 51 Yang, 286 F.3d at 946 (defendant 56 Almeida-Sanchez, 413 U.S. at 272 (1973); article. accosted after he had cleared international see also United States v. Brignoni-Ponce, 422 48 United States v. Thomas, 257 F. Supp.2d arrival terminal, his luggage having been x- U.S. 873, 877-78 (1975), which quotes this 494, 497 (D. P.R. 2003)(search conducted in rayed with negative results, and had traveled to provision from Almeida-Sanchez with approval. vicinity of the pier area of an arriving ship is a a separate terminal via airport tram; second 57 Id. at 273. border functional equivalent); United States v. look, deemed proper as extended border search, 58 Id. at 274-75, quoting from Carroll v. Victoria-Peguero, 920 F.2d 77, 80 (1st Cir. uncovered opium-soaked clothing). United States, 267 U.S. 132, 153-54 (1925). 1990), cert. denied, 500 U.S. 932 52 Id. at 947 (citations omitted). 59 Terry v. Ohio, 392 U.S. 1 (1968). (1991)(“courts have consistently recognized the 53 Id. at 948 (citation omitted); see also 60 Brignoni-Ponce, 422 U.S. at 875. constitutionality of warrantless searches at the United States v. Fogelman, 586 F.2d 337 (5th 61 Brignoni-Ponce, supra note 56 at 878. functional equivalent of the sea Cir. 1978)(extended border search permitted 62 Id. at 884. Helpfully, the Court provided a border”)(citations omitted); United States v. 254 miles and 20 hours from observed border nonexclusive list of factors that could give rise Gavira, 805 F.2d 1108 (2d Cir. 1986), cert. crossing); United States v. Martinez, 481 F.2d to reasonable suspicion in the mind of an denied, 481 U.S. 1031 (1987)(site of extensive 214 (5th Cir. 1973)(extended border search experienced immigration officer: 1) characteris- final customs inspection held to be border allowed 150 miles and 142 hours after border tics of the area in which they encounter a functional equivalent even though preliminary was crossed). “[C]ontinuous surveillance is not vehicle; 2) the vehicle’s proximity to the customs inspection had been conducted at a requirement of an extended border search[,]” border; 3) the usual patterns of traffic on the initial point of entry; final destination 3-part Cardenas, 9 F.3d at 1150, and thus a break in particular road; 4) previous experience with test established to determine if search of bonded that surveillance is not fatal to the conduct of an alien traffic; 5) recent illegal border crossings in shipment constitutes border functional extended border search. “The government is not the area; 6) the vehicle operator’s driving equivalent: 1) the search location “is the required to negate every hypothetical possibility behavior (evasive or erratic?); 7) size and intended final destination of the goods; 2) the as to how the contraband may have been configuration of the vehicle (can it easily goods, upon arrival, remain under a customs obtained subsequent to the border crossing. smuggle aliens?); 8) whether the conveyance bond until a final search is undertaken by [U.S.] [T]he mere assertion by the defendant that there appears to be heavily loaded; 9) whether the

August 2004 / 31 conveyance is carrying a large number of been searching for vehicle identification the designation of “any agent or other person” passengers; 10) whether passengers make number stamped on truck frame); Whiting, to “perform any duties of an officer of the attempts to hide; and 11) the mode of dress and supra note 5 (evidence found in mail leaving [U.S.] Customs Service.” haircut typical of in-dividuals from foreign the United States was suppressed because an 72 People v. Villacrusis, 992 F.2d 886, 887 countries. Id. at 884-85. Office of Export Enforcement agent of the U.S. (9th Cir. 1993). 63 Historically, the Border Patrol could Department of Commerce was not cloaked with 73 United States v. Noriega, No. 98- search only for illegal aliens at the border (and customs border search authority). 50022,1998 WL 515111, at *1 (9th Cir. Aug. not for contraband) and U.S. Customs could 66 Id. at 550. 14, 1998) (unpublished)(gas station attendant search only for items entering the United States 67 Id. at 1136. removed tires containing contraband from in violation of the customs laws. Now that both 68 Id. (original emphasis). vehicle at direction of customs inspector). Note functions have merged into the CBP at DHS, 69 “In order for a border search to be valid, it that when body cavity searches are conducted, this enforcement dichotomy is coming to an end must be executed either by a person statutorily see supra notes 28 and 29 and accompanying as border protection officials are being cross- authorized to conduct border searches or by an text, customs officials regularly rely on trained. individual who by delegation of authority is so physicians to assist them. 64 19 U.S.C. § 482. Besides being permitted empowered. Furthermore, the delegation of to “board or search vessels,” § 482 also allows authority must be clear.” United States v. Law enforcement officers of other than authorized “officers or persons” to “stop, Brown, 858 F. Supp. 297, 300 (D.P.R. federal jurisdiction who are interested search, and examine...any vehicle, beast, or 1994)(citations omitted). in this article should consult their legal 70 person[.]” Victoria-Peguero, supra note 48. advisors. Some police procedures 65 71 United States v. Soto-Soto, 598 F.2d 545, Id. (officers from both the Commonwealth ruled permissible under federal 549 (9th Cir. 1979)(marijuana found under the of Puerto Rico Police Narcotics and Marine constitutional law are of questionable hood of a pickup that crossed border into the Divisions given radioed approval from U.S. United States was suppressed; at time of Customs Service to make customs search at legality under state law or are not discovery, FBI agent working at the border had sea); see also 19 U.S.C. § 1401(i), which allows permitted at all.

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32 / FBI Law Enforcement Bulletin The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face each challenge freely and unselfishly while answering the call to duty. In certain instances, their actions warrant special attention from their respective departments. The Bulletin also wants to recognize those situations that transcend the normal rigors of the law enforcement profession.

Officer Charles Ricco of the Fairfield, Connecticut, Police Department responded to a one-car accident in a residential neighborhood. Upon arrival at the scene, Officer Ricco determined that the vehicle had gone over a curb and struck a tree. The elderly female driver sustained injuries and was trapped in the car. Officer Ricco also noticed that the engine compartment was on fire and that the vehicle was filling with smoke. Quickly and without regard for his own safety, Officer Ricco forcefully opened the driver’s side door and carried the woman to the safety of his patrol car, where they waited for medical help. Officer Ricco’s selfless actions pre- vented the serious injury or death of the elderly driver. Officer Ricco

Officers from the Fresno, California, Police Department responded to a shooting incident in which the suspect was still on the scene. Upon arrival at the residence where the incident occurred, officers saw the shooter pointing a gun under his chin while sitting on a sofa in the small bedroom. The victim was lying motionless on the floor a few feet away from him. Officers attempted to negotiate, but the suspect, continuing to point the weapon at his head and mouth, refused to allow them to enter the bedroom to rescue the unconscious man. Officer Raymond Holquinn then made the decision to rescue the victim and facilitate medical treatment. He crawled into the room, just a few feet away from the armed suspect, calming him as Officer Holquinn he proceeded, grabbed the victim by the ankles, and pulled him out of the bedroom to safety, where the man received immediate medical treatment and transport to a local hospital. Officer Holquinn’s brave Nominations for the Bulletin Notes should be based actions saved the individual’s life. on either the rescue of one or more citizens or arrest(s) made at unusual risk to an officer’s safety. Submissions should include a short write-up (maximum of 250 words), a separate photograph of each nominee, and a letter from the department’s ranking officer endorsing the nomination. Submissions should be sent to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135. U.S. Department of Justice Periodicals Federal Bureau of Investigation Postage and Fees Paid Federal Bureau of Investigation FBI Law Enforcement Bulletin ISSN 0014-5688 935 Pennsylvania Avenue, N.W. Washington, DC 20535-0001

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