October 1985

Law Enforcement Bulletin

••••••••••••••••••••••••••••••••••• I FBI I I LAW ENFORCEMENT I BUlLETIN i I I I• I • •I I

I Jos.,.. Huler I. w•• te4 for the Ud...pl...f Erlnt K. N...... 1 • $1""" Cit,. low., Feb","" 4. 1935. fOT ..Mth oft..... h..... ;""Ieled • by • Fed.ral Grolld Jur, .t SI_ CII,. Iowa oa June I, 1935. H••I., I. al.o Wlllted for tb. kld..,i.. of H...... G. Bred...tei••r ."" DeaD I S. J.lDeo I( NI.ho.bot••, MI ....'i. on J_ 3, 1935. A ~Ial.t .... filed bofo,. a Unit"" Sta,•• Commissioner .t Omht. Nebr..ka J_ 27, 1935 thar,l.. hi. with tbi. oUeo... UIftI.,I. tlte '''''J••tof Ide.tltl • i ..tioa Order HI168. I..oed b, tlte Federal liar... 01 1."..11,,11... I • If'htnd iurtau of JutttsttgattJ1u . j;. IJrparlmrnl of Justin I i I . ~ I.CI . I VOL 4 NO. 10 OCTOBER 1, 1935 I••••••••••••••••••••••••••••••••• October 1985, Volume 54, Number 10

lP@O~©@ [}(]O@~@[f'W 2 The FBI Law Enforcement Bulletin: Pathway to Professionalism By Thomas J. Deakin © [f' ~0Dil@ @ ~ @ ~ O@~~©@ 10 Blueprint for the Future of the Uniform Crime Reporting Program By Paul A. Zolbe

[b @@@O [M] @ ~~ @ [f' @ 13 Search and Seizure Policy: Development and Implementation By Clarke F. Ahlers ©@@~@[f'@~~@[ii) 18 Law Enforcement Coordinating Committees: One District's Experience By Gerald D. Fines and L. Lee Smith ©@@~@[f'@~D@[ii) 21 Sharing Federally Forfeited Property By Rosemary Hart and Laurence E. Fann

[b@@@O [Q)o@@@~ 25 Computerized Business Records as Evidence: Required Predicates to Admission By John Gales Sauls 32 Wanted by the FBI l%OOlJ Law Enforcement Bulletin

The Cover: Federal Bureau of Investigation Published by the Office of This month's cover illustrates the first issue of the United States Department of Justice Congressional and Public Affairs, FBI Law Enforcement Bulletin under this title in Washington, DC 20535 William M. Baker, Assistant Director October 1935. (See article p. 2) Editor- Thomas J. Deakin William H. Webster, Director Assistant Editor- Kathryn E. Sulewski Art Director- Kevin J. Mulholland The Al10rney General has determined that the publication of this periodical is necessary in the Writer/Editor- Karen McCarron transaction of the public business required by law Production Manager- Jeffrey L. Summers of the Department of Justice. Use of funds for Reprints- Regena E. Archey printing this periodical has been approved by the Director of the Office of Management and Budget through June 6, 1988.

ISSN 0014­5688 USPS 383­310 Director's Message

The Comprehensive Crime Control Act of Procedures have been established by the 1984, signed into law by the President, contains Attorney General for State and local law provisions authorizing the Attorney General of the enforcement authorities to follow in requesting a United States or a designee to transfer or share share of property seized under the forfeited property with participating State or local Comprehensive Drug Abuse Prevention and law enforcement agencies. Prior to passage of Control Act of 1970 or the Racketeer Influenced this act, the Federal Government could not share and Corrupt Organizations Act. Seized property or forfeited property with other nonfederal law proceeds from its sale can be equitably enforcement entities. transferred to State or local law enforcement The intent of this new legislation is to agencies which directly participated in the actions enhance cooperation between Federal, State, and that led to seizure or forfeiture of the property. local law enforcement agencies, especially in drug To aid in requesting a share of such property, investigations where most forfeitures occur. The a U.S. Department of Justice form, " Application Attorney General and I have fully supported for Transfer of Federally Forfeited Property" efforts to implement the sharing provisions of the (DAG­71), is now available from any of the local act. or regional offices of the FBI , DEA, or INS. Drug dealers view apprehension and I believe that the new equitable sharing conviction as a "cost of dOing business," because provisions of this law will definitely enhance law the huge profits generated by this traffic provide enforcement's cooperative efforts in this Nation's an overwhelming incentiv.e to those who ignore battle against illegal drugs and I urge State and the social costs. But, by depriving those in this local law enforcement authorities to take business of the profit, law enforcement can advantage of these new sharing provisions. remove the primary incentive, plus provide law enforcement with additional resources to combat this illegal activity.

William H. Webster Director October 1, 1985 The FBI Law Enforcement Bulletin Pathway to Professionalism

By The FBI Law Enforcement Bulle• Listing fugitives in a publication THOMAS J. DEAKIN tin was first published in 1932 to for law officers was not a new idea; foster "the exchange of criminal iden- the Texas Rangers did it a half centu- Special Agent/Editor tification data among . . . law en- ry before. 3 But a nationwide list, at FBI Law Enforcement Bulletin forcement officials. " 1 first called Fugitives: Wanted By Federal Bureau of Investigation In a 1932 memo, Harold " Pop" Police, with fingerprint classifications Washington, DC Nathan, the first Assistant Director of of the fugitives for identification, ex- the then Bureau of Investigation, sug- emplified the innovations the FBI was gested publishing a list of fugitives na- initiating in law enforcement coopera- tionwide. The Bureau's Director noted tion. "The objective of the on Nathan's memo: "I am very much Just 3 years later, another memo- Bulletin, like that of impressed with the suggestion . . . randum was prepared for Director J. the other cooperative we must continue to grow else we Edgar Hoover recommending that the cannot justify our present existence. name of the publication be changed functions of the FBI, J.E. Hoover." 2 to " FBI Police Bu"etin" since a is to advance the number of articles of interest to police profession of law had appeared in it, in addition to the listings of fugitives. Next to this sug- enforcement. It is gestion, Hoover wrote, "Just a the desire of the thought, instead of using police, how Federal Bureau of FUGITIVES about 'law enforcement.' " 4 Investigation that this And so, the title FBI Law Enforce• publication continue ment Bulletin appeared for the first \Vanted By time in October 1935­for a" of law to be developed in enforcement, not just police. POLICE such a manner that A memorandum on the name the greatest degree change to the Attorney General re- ported: of service may be " The Bureau gradually added to afforded to law the bulletin articles of a scientific enforcement nature, information relative to police generally." tactics and treatises concerning the UNITED STATES BUREAU or INVESTIGATION more recent developments in law J. Edgar Hoover John Edgar Hoov~r. DirectOr enforcement technique, until it December 1947 WaahlngtOn. O. C. became, in fact, a journal of a scientific and informative character for peace officials, thus necessitating a change in its name." 5 The Bu"etin has been a history of law enforcement's pathway toward

2 / FBI Law Enforcement Bulletin ___ professionalism. As the FBI began to view of the Bulletin. In October 1982, train police at the National Academy Judge Webster wrote: in the developing scientific, investiga• "Over the years, the Bulletin took tive, fingerprint identification, and Uni• on a new direction and form Crime Reporting fields, develop• emphasis . . . as law enforcement ments marking the beginning of police gained the hallmarks of a progress toward professionalism were featured in the Bulletin. professional service. Readers can now benefit from articles on The earlier Fugitives: Wanted by management techniques, personnel Po/ice had carried an article on explo• matters, special operations, legal sives from the St. Louis Police Depart• developments, and computer Special Agent Oeakin ment, a piece on the deciphering of management, as well as training, charred records by scientists at the investigative techniques, current U.S. Bureau of Standards, other arti• crime problems, [and] forensic cles on fingerprinting, an article on science developments . . . ." 6 testing for blood stains from the Dis• trict of Columbia Police Department, The country, having experienced and a profile of bombs by the New the " Roaring Twenties" with their at• York City Police Department. Material tendant postwar crime problems, re• from three outstanding local police ported by the Wickersham Commis• agencies, from scientists, and from sion (President Herbert Hoover's Na• FBI experts set the standard for the tional Commission on Law Observ• next 50 years; the publication had al• ance and Enforcement), went through ready become a cooperative venture what was called a "renaissance" in of law enforcement agencies and the law enforcement. The 1930's were scientific and academic communities. the decade of this " renaissance"; the Hoover wrote in the first issue of FBI became the national exemplar of the Law Enforcement Bulletin in 1935: American law enforcement-and the ". . . this publication should Bulletin was the voice of the FBI. provide a clearing house for police The new FBI publication detailed officials regarding successful police what the FBI was doing to meet the methods, a medium for the Commission's challenges to law en• dissemination of important pOlice forcement: Training toward profes• information, and a comprehensive sionalism, via the new FBI Police literature pertaining to the scientific Training School (now the National methods in crime detection and Academy), scientific examination of criminal apprehension." evidence in the FBI 's new Technical Today, this is still the goal of the Laboratory, and new developments in Bulletin. the nationwide identification of fugi• Later, future Directors of the FBI, tives through fingerprints.? Clarence M. Kelley and William H. Contributions by nationally known Webster, would endorse Hoover's police chiefs, such as August Vollmer, were indications that the Bulletin was in the vanguard of law enforcement pioneering. Vollmer, an innovative police executive in California (he hired college graduates as police officers for the first time), wrote a long piece on the ideals of police service. In a

------______October 1985 / 3 * and crime was becoming an issue of national public concern, Hoover wrote in the Bulletin that "the public is de- manding efficiency in its law enforce- ment agencies. This can be effected by raising the level of law enforce- ment work above the encroachments of political influence." He called for the training of police executives, which the FBI had begun with its new Police Training SchooL1 1 An introduction in 1936 noted that "the FBI Law Enforcement Bulle• tin has been published by the Federal Bureau of Investigation with the hope of assisting law enforcement officials . . . the purpose of this publication [has been] to provide a clearing house for successful police methods and a disseminating medium for im- portant police information." 12 This is still true today, after a half century. The year 1939 saw the end of a FEDERAL BUREAU OF INVESTIGATION decade of criminal activity that finally UNITED STATES DEPARTMENT OF JUSTICE moved America and its leaders of law J OMM Eoult HOOV[III . 0 UI ( CTOIII WASHt NOTON . O. C, enforcement to take action. Then, VOL .7 No . 8 ~· AuG. 1,1938 President Roosevelt in a statement printed in the October Bulletin direct- ed that the FBI take charge of espio- nage and sabotage investigations. World War II had begun in Europe.

The War Years and Beyond prelude to police work in the behavior- tion to the Bulletin, compared law en- Beginning with the first issue in al sciences which developed much forcement to "a great army moving 1940, and continuing until 1965, the later in the 1970's, Vollmer wrote that against a common [criminal) enemy Bulletin listed topic headings in the the " policeman must intimately know ..." with the FBI Law Enforcement table of contents­areas that reflect- the factors underlying human behavior Bulletin as the "medium of making in- ed needs for police training that the if he hopes to succeed in his chosen formation available to all units engaged FBI had featured in the Bulletin's first profession." 9 in the eradication of crime." 10 5 years-Scientific Aids, Police Train• Vollmer and Hoover advocated The diverse nature of American ing, Police Records (especially the freedom from political influence for law enforcement, with the majority of Uniform Crime Reports) and Identifi• police and rigid discipline from the officers coming from very small de- cation. Other headings highlighted top. This was based on both men's partments, made classroom training a areas of increasing police interest- admiration for military professionalism, logistical problem in the 1930's, but Traffic and Police Communications. common to police reformers at this this publication was one way to bring time. Cooperation between law en- modern training to them. As American forcement agencies was also stressed police departments were historically by both. Hoover, in an early introduc- involved in local politics at this time,

4 / FBI law Enforcement Bulletin ______­­­.:.______" Hoover again emphasized the training of police through the 'pages of this Bulletin.'"

The January 1940, issue of the Introduction topics during the war Bulletin carried an article under Police covered not only national defense eGr.'. tfrl ...... _-'t..a...-.... Communications by Bruce Smith, a matters, including how to order revolv• lawyer known for his management ers earmarked for police use, but also surveys of American police depart• professional matters-police training, ments. The International Association fingerprints, and Uniform Crime Re• of Chiefs of Police (IACP) later called ports (with the number of reporting Smith one of four men in the United agencies growing from 1,127 to 4,300 States of " influence for good in Amer• by 1940)-were still emphasized ~~/ud ican law enforcemnent." The others during these years. • were August Vollmer, D.W. Wilson, Just before the Bulletin complet• • BULLETIN and J. Edgar Hoover, giants of law ed its first decade, J. Edgar Hoover enforcement's leadership in the first wrote about progress in law enforce• half of this century.13 ment professionalism and urged: " . . . careful selection of "" I r-..-r a.u.. 01 r.,...... personnel; high educational 'iIIO,,~ ...tI v...... Sla.,.. """,....1 ., Jrudu requirements; thorough training of I;... Ne. U J. Edt:.r Hoover, Dlreee.r personnel; rigid discipline; promotions based on merit; freedom from the chains of political crease in juvenile delinquency. The interference; detailed investigations; Bulletin carried numerous articles on appreciation of evidence; protection then new police programs to cut juve• of the innocent; complete nile delinquency; these were support• elimination of any slight semblance ed by Director Hoover in Bulletin intro• of third degree tactics; unbiased ductions, more on this subject than testimony in courts of law and any other. protection of civil liberties.14 This period, with the Korean War, These methods built the FBI, and saw an increase in alerts to local he believed local law enforcement police on internal security and com• should be constructed on the same munism. Professionalism in law en• foundations. forcement, cooperation between law Immediately after the war, in enforcement agencies, Hoover's sup• March 1946, Hoover again empha• port for the IACP, honesty in law en• sized the training of police through the forcement, and police pay, as well as his opposition to any national police, -. ------~ m IB ,~ , rn - In --~ t~ - I.n ------" pages of this Bulletin." He stressed were also covered in introductions. ~ UDlti!d ;IJlesl., De~~~DI I~. ~~!~ that all officers should have access to 1 the Bulletin. Training also came from In September 1958, Hoover wrote the FBI-sponsored National Academy about child abductions and kidnapings and from local police schools-277 and recommended that children be Five months before the war in• were held in 1939 in almost every fingerprinted so they could be later identified. He anticipated by 30 years volved the United States, the topic State. heading National Defense was added the 1980's problem of missing chil• to the Bulletin with an article on the The Decade of the Fifties dren and the surge of child fingerprint• " Duties of Police in National Emer• The 1950's brought an increase ing for identification. gencies." From 1942 until 1945, the in the juvenile population of the Bulletin began publishing every other United States and a tremendous in• month because of the paper shortage in World War II.

October 1985 / 5

------"In 1964, . . . Hoover called professionalism a 'cooperative effort' between universities, local governments, and law enforcement."

As a result of an article which ap• The Turbulent 1960's In 1964, just before the great ex• peared in a 1955 Bulletin on the use An article on civilian review pansion of college training for police, of dogs in police work in London, boards, a controversial topic in this Hoover called professionalism a " co• England, the St. Louis, MO, Police decade, appeared in July 1966. Vari• operative effort" between universities, Department was one of the first large ous treatments on riot control from local governments, and law enforce• city departments to adopt a canine New York City Police, the Pennsylva• ment. He wrote: 1S program. St. Louis contacted the nia State Police, the U.S. Army, Hong " More states should be making London police and sent an officer Kong Police, and a university, and on available essential police training. over there in 1958 to train with the civil rights from the FBI were timely in More universities and colleges first dog St. Louis acquired, according this riotous time. should be initiating and increasing to a followup article in the Bulletin. 16 IACP views on professionalism, courses of study oriented toward In the 1950's, technology was ad• followed by articles on data process• the development of a career police dressed in articles on FM radios, then ing, the National Crime Information profession. Law enforcement must beginning to be used in police work, Center (NCIC), video identification in raise its sights, broaden its outlook, and the first use of helicopters by the and insist on a higher caliber of New York City Police Department. The performance." 18 problem of a lag in the social sciences August Vollmer, the early advo• was addressed by the New York City cate of police professionalism, and Police Department in "Some Modern Hoover had differed over legal training Horizons in Police Training" in Septem• in the field of law enforcement. ber 1957. Hoover, a lawyer, wanted his Agents The preceding May had seen to be lawyers and urged at least some " FBI Training Assistance for Local legal training for all police officers. Police" addressed, which noted: "The Vollmer felt a more general education FBI Law Enforcement Bulletin is pub• to be sufficient. Hoover's view pre• lished as a means of providing up-to• vailed, and law enforcement moved date law enforcement techniques . . . closer to the purpose of enforcing the for reference material . . ." or use in law. The FBI has long emphasized classroom instruction. This article legal training for its Agents, and noted the 542 FBI-sponsored schools through the National Academy and on civil rights for local police held in F'edo!r. 1 Bu ...... fI( h"'.llplloa local police training schools, has ex• 1956 alone and the initiation of state• U.IIeoIIS..lal>qMl"....,.IIJi J.. ..• J ...... "-~ .~ ... tended this instruction to local police. wide schools in latent fingerprint work Ij Later, Director Webster would (the Bulletin had run articles on the support Hoover's view of legal training latter subject contributed by the Syra• for police. In the November 1984, Bul• Florida, and a 1968 California story on cuse, NY, and Columbus, OH, police letin he announced a new FBI Nation• computer applications in law enforce• 'departments). 17 al Law Institute established by the ment were indicative of the Bulletin's Articles on the use of seatbelts in FBI's Legal Counsel Divison for local up-to-date approach. 1956, on the role of an alcohol clinic police legal advisors, writing: by a California sheriff, and on the role Timely articles on pursuit driving of policewomen in Philadelphia and training, psychedelic drugs, and a " . . . the complexity of legal issues Cincinnati showed that the Bulletin management professor's piece on the encountered by law enforcement was ahead of its time in this decade, budget process also showed the Bul• officers, managers, and too. letin's view of modern policing. Direc• administrators in recent years tor Hoover's Messages in the Bulletin highlights the need for each law concerned various facets of the crime problem, civil disobedience, civil rights, communism, and riots during this period.

6 / FBI Law Enforcement Bulletin ______Digest began with a memorandum by It seems to me that in the 1970's Special Agent Dwight J. Dalbey, who the dominant issue is the need to ~ later became the FBI 's first Assistant redesign police organizations and Director of the Legal Counsel Division, operations so they can better serve ~ LAW ENFORCEMENT BULLETIN after various legal articles by judges crime­control and community- and district attorneys were well­re- service objectives . . . ." 22 ceived by police readership. Another article that illustrated the Dalbey wrote in 1967 that a way problems of the 1970's was "A Pro- for the FBI to meet "the deep and fessor's 'Street Lessons' " by a crimi- broad demand for legal training in the nology professor who became a work- police field" was "through publication ing police officer as a "means of of legal articles in the FBI Law En• establishing . . . the accuracy of forcement Bulletin." Director Hoover, what I and other criminologists had conscious of the sweeping changes in been saying about the police for so the criminal law then being made by long." Instead, at a time when police the Supreme Court, noted on this were so much under attack on cam- memo, "More the better." 21 puses and in the academic communi- Clarence M. Kelley succeeded ty, he learned that "lawful Hoover as Director of the FBI, after L. authority . . . is the only thing which Patrick Gray served a time as Acting stands between civilization and the FEDERAL BUREAU Of' INVESTIGATION Director. A Special Agent in Charge jungle of lawlessness." This became UNITED STATES DEPARTMENT 01" JUSTICE J EDGAR HOOVER, DIRECTOR when he retired, Kelley was a career the most widely reprinted of any arti- FBI Agent who then became chief of cle that had appeared in the Bulle- police in Kansas City, MO. Director tin. 23 enforcement agency to have ready Kelley's June 1974, Message in the and continuous access to a Bulletin gave his definition of profes- qualified legal advisor." 19 sionalism in police work: It requires the qualities of intelligence, dedica- New Directions in the 1970's tion, courage, humaneness, and the A PROFESSOR'S J. Edgar Hoover died in 1972, but knowledge generated by cooperation "Street Lessons" before his 48-year career in law en- and training, but it especially requires forcement ended, he initiated the integrity. "No law enforcement officer "Legal Digest," so named in February can be a professional without being .. J alnlt 1971, and since then the most popu- hl>l1J~ olUl lilt/if off honest." th~ t•• J~~ and lar feature of the Bulletin. It is written blm ttnif""flltilh He saw to it that the Bulletin car- o~oJl4wfrv. by law­trained FBI Agents who teach hoft "",1 ('tIft'n· ried articles by other law enforcement buUM to ""ll/,l law courses at the National Academy Ihot I Iu" C I)M"rr professionals, including academics, on IrrW,../JUII"" Olh" job- .\omf'lIom 1M' to police officers so they understand / •."Iml' ~".s 'I? this subject. One, by Professor James 1JIa.!f~{'r"fhlllj{_ police needs in the field of legal edu- ll,~' JJ'rl'Jl,fId 11M Q. Wilson of Harvard, noted: IhUJlff'r.I""'l~ cation. ,bll,..-..."rllwlul, "In the 1950's the dominant When this continuing series of ar- police issue in this country was that ticles on developments in the criminal of professionalism and integrity. law that affect policing first appeared Police chiefs spent most of their under the heading, "Legal Digest," time dealing with the problem of one county prosecutor wrote and integrity. In the 1960's, without asked that his entire staff be added to losing sight of integrity, the the Bulletin mailing list. 20 The Legal dominant concern for the progressive police administrations became police­community relations.

October 1985 I 7 "The FBI Law Enforcement Bulletin is committed to a continuation of reportage of progress in law enforcement. . "

and female applicants for the much so, that for the first time the Special Agent position ....Minority Bulletin had to go back on the press representation in all law to print an extra 10,000 copies of this enforcement agencies is equally issue to answer requests. A special sound-and equally required by law. issue on deadly force was introduced It was not a historic accident that in by Director Webster's Message, the early days of organized noting that this was the ultimate issue peacekeeping in this country, police facing the law enforcement profes• forces had heavy ethnic, particularly sion, "for no court can correct a immigrant, representation." deadly mistake once it has been Judge Webster brought not only made." 25 an increased sensitivity for the law to Over 66,000 copies of the Bulle• the FBI but also a sense of historical tin are printed each month, compared perspective. For the Bulletin, too, with the 5,000 when the publication there were new directions. January first appeared. These are made avail• 1981 , introduced our first "theme" able without cost to all Federal, State, issue, the entire contents being devot• and local law enforcement agencies, ed to one subject. The first theme to National Academy graduates, and issue was on collective bargaining, to law enforcement professionals with articles assembled by the FBI's throughout the world. Also, the Bulle• New issues in law enforcement, Training Division staff. tin is furnished to other criminal jus• such as team policing, the handling of The next theme issue appeared tice professionals who request it, such victims, and physical fitness for law in January 1984, on the subject of pe• as educators in the field, prosecutors, enforcement officers, were covered. dophilia and child pornography, just and judges. Unfortunately, budget re• Director Kelley, as chief in Kansas as great public and Congressional in• strictions preclude furnishing the Bul• City, developed a concern with police terest in this topic developed. So letin to the many citizens interested in management which led to numerous articles on this subject, including one in September 1976, on the FBI's new SA Bernard M. Suttler 1938(?)• National Executive Institute. 24 BULLETIN 1943 The Bulletin Today SA George L. Carroll 1943• 1947 Judge William H. Webster took EDITORS over as Director of the FBI in Febru• SA Edward C. Kemper 1947• As the FBI Law Enforcement 1952 ary 1978, when Clarence Kelley re• Bulletin did not have a masthead tired; his first message in the FBI Law SA Dwight J. Dalbey 1952• until 1978, it is appropriate to list 1955 Enforcement Bulletin was on minority the editors here: SA Lawrence J. Heim 1955• recruitment in law enforcement. Web• ster, serving as a Federal appellate 1959 judge at the time of his appointment, SA Charles E. Moore 1959• 1961 wrote in the July 1978, Bulletin: SA C. Benjamin Fulton 1961• "One of my first acts as the new 1972 Director of the FBI was to increase SA John H. Campbell 1972• efforts to recruit qualified minority 1976 SA Thomas J. Haddock 1976• 1977 SA Thomas J. Deakin 1977• present

8 I FBI Law Enforcement Bulletin ______• The FBI Law Enforcement Bulle- tin is committed to a continuation of JANUARY 1979 reportage of progress in law enforce- ment so that descendants of officers now serving will continue to learn and grow in professionalism during the next half century. [?lIDO

Footnotes , J. Edgar Hoover, "Introduction," Fugitives: Wanted By Police, vol. 1, No.1, January 1932, p. 1. 2 Harold J. Nathan, Memorandum for Director, July 18,1932. 3 Erik Rigler, " Frontier Justice," FBI Law Enforcement Bulletin, vol. 54, No. 7, July 1985, p. 16 . • Clyde Tolson, Memorandum for Director, July 25, 1935. • J. Edgar Hoover, Memorandum for Attorney General, October 24 , 1935. • William H. Webster, " Message from Director," FBI Law Enforcement Bulletin, vol. 51 , No. 10, October 1982, p.1 . 1 J. Edgar Hoover, " Introduction," FBI Law Enforcement Bullelin, vol. 4, No. 9, September 1935, p. 1; vol. 5, No. 7, September 1936, p. 1; vol. 5, No. 11 , November 1936, p. 1. • J. Edgar Hoover, "Introduction," FBI Law Enforcement Bulletin, vol. 19, No. 1, January 1950, p. 1. • August Vollmer, " Police Ideal of Service," FBI Law Enforcement Bulletin, vol. 6, No. 2, February 1937, p. 3. ' 0 J. Edgar Hoover, " Introduction," FBI Law Enforcement Bulletin, vol. 6, No. 4, April 1937, p. 1. 11 J. Edgar Hoover, " Introduction," FBI Law Enforcement Bulletm, vol. 5, No. 6, June 1936, p. 1. 12 J. Edgar Hoover, " Introduction," FBI Law Enforcement Bulletin, vol. 5, No. 7, July 1936, p. 1. " Roy C. McLaren, " In Memoriam: Orlando Winfield Wilson, " The Police Chief, vol. 37, No. 1, January 1973. ,. J. Edgar Hoover, " Introduction," FBI Law Enforcement Bulletm, vol. 13, No. 6, November- December 1944, p. 1. " Sgl. Eugene Broders, Sf. Louis Police Department (ret), telephonic in terview by author, June 6, 1985. " Walter Dorn, " Man­Dog Teams Serve Sf. Louis Most Effectively," FBI Law Enforcement Bulletin, vol. 30, No. 3, March 1961 , p. 3. " FBI Law Enforcement Bullelin, " FBI Training Assistance For Local Police, " vol. 26, No.5, May 1957, p. 16. ,. J. Edgar Hoover, " Introduction," FBI Law Enforcement Bulletin, vol. 33, No. 5, May 1964, p. 1. ,. William H. Webster, " Message from Director," FBI Law Enforcement Bulletin, vol. 53, No. 11 , November 1984, p. 1. 20 George M. Scott, county attorney, Hennepin County, MN, letter to Director, FBI, March 12, 1971 . 21 J.J. Casper, Memo to Mr. Mohr, " Police Training, crime prevention today; however, the nators in each FBI field office who Legal Materials," February 1, 1967. Government Printing Office does send have daily contact with police, but 22 James Q. Wilson. "A Long Look at Crime" , FBI Law Enforcement Bulletin, vol. 44, No. 2, February 1975, the Bulletin to over half (870) of the budget constraints permit the printing p. 2. depository libraries around the coun- of only 60 or so over the course of 23 George L. Kirkham, "A Professor's 'Street Lessons'," FBI Law Enforcement Bulletin, vol. 43, No. 3, try, which are available to the public. the year. For this reason, the Bulletin March 1974, p. 2. Today, the Bulletin receives over 2. FBI Law Enforcement Bulletin, " The FBI's National staff seeks articles not previously pub- Executive Institute: Educating Law Enforcement's Top 120 potential articles annually, either lished that give clear explanation of Level Managers," vol. 47, No. 9, September 1976, p. 3. " William H. Webster, " Message from Director," FBI directly or from police training coordi- new and successful ideas that im- Law Enforcement Bulletin, vol. 54, No. 4, April 1984, p. 1. prove the profession of policing.

______October 1985 / 9 Blueprint for the Future of The Uniform Crime Reporting Program By PAUL A. ZOLBE Section Chief Uniform Crime Reporting Section Federal Bureau of Investigation Washington, DC

The first two phases of a compre- would entail the reporting of much the Unit-record Reporting hensive study of the Uniform Crime same information as today by about ­Convert the entire UCR system Reporting (UCR) Program are com- 95 percent of the law enforcement to unit­record reporting in which local plete, and a report entitled " Blueprint agencies, known as level I partici- law enforcement agencies submit for the Future of the Uniform Crime pants. The level II component, con- reports on each individual offense. Reporting Program" has been issued. sisting of the Nation's largest agen- ­Convert the entire UCR system Conducted for the FBI and the Bureau cies, as well as a sampling of all to unit­record reporting in which local of Justice Statistics (BJS) by a private others, would report more extensive law enforcement agencies submit research firm and overseen by a joint data encompassing many more of- data on each individual arrest. BJS/FBI task force, the study began fense categories. Quality assurance These two recommendations are in September 1982. The first phase recommendations include routine the most central to the entire revision examined the original UCR Program audit procedures, agency self­certifi- of the program. A conversion to unit and its evolution into the current pro- cation of minimum reporting­system reporting will increase accuracy by al- gram. The second phase examined al- standards, increased feedback to lowing most tabulations to be comput- ternative potential enhancements to local agencies, and strengthening of erized and by furnishing a sound basis the UCR system and concluded with State UCR Program quality assurance for edit checks and audits. Unit report- the production of a set of recom- measures. ing will also provide the flexibility re- mended modifications presented in Also addressed in the report is quired for indepth analy1ical capabili- the report. Upon adoption of the rec- the potential integration of UCR data ties. Possible disadvantages include ommendations, the third and final with National Crime Survey (NCS) es- the possible interruption of the long- phase of the study will commence to timates and Offender­Based Transac- term statistical series, potential delays design the data collection incorporat- tion Statistics (OBTS), as well as data in obtaining summary counts of of- ing the proposals and to implement publication series and user services. fenses and arrests in agencies with- the revised system. The tasks for the implementation and out computer systems, and probably The most significant recommen- operation of the revised system are of most concern, unit­record reporting dations of the "blueprint" relate to outlined with a schedule for imple- may be more expensive. unit­record reporting, the proposed mentation and estimates of the costs two­component system, and quality involved. Level I Component assurance. As opposed to the current Set forth below are the blueprint's ­Retain data collection for part I summary reporting system, under unit- major recommendations with a brief offenses only, but eliminate negligent record reporting law enforcement discussion of each. manslaughter altogether and broaden agencies would report data on each the rape category to include all offense and arrest individually. The forcible sexual offenses. proposed two­component system

10 / FBI Law Enforcement Bulletin "The most significant recommendations of the 'blueprint' relate to unit- record reporting, the proposed two-component system, and quality assurance."

-Distinguish attempted from more than 1,000 officers, the data col• -Data describing the completed offenses. lection must accommodate the vary• characteristics of each law -Eliminate use of the "hierarchy ing levels of information maintained enforcement agency and its policies rule" by which offenses are not by those agencies. Hence, the level I should be collected from reporting counted when they occur in collection would be similar to the cur• agencies. These data should be conjunction with more serious rent system, but in unit-record form. assembled together with offenses, but retain the hierarchy rule The above-recommended modifica• demographic, socioeconomic, and offense as the first offense reported tions to today's system were predicat• physical characteristics of the to distinguish primary and secondary ed on the conversion to unit reporting jurisdiction, which should be obtained offenses. and were arrived at after careful con• from other sources, such as the U.S. -Redefine aggravated assault sideration of the resultant workload Census Bureau. more explicitly in terms of the use of burden and costs, importance of the -The system should be weapons and/or the extent of injury to purposes for the data's collection, the designed to allow for a variety of facilitate distinguishing it from simple possible availability of similar data levels of State program participation. assault. from other sources, the effects on To supplement the level I nation• -Collect additional information data accuracy, and the effects on the wide collection of Crime Index data, on criminal homicides and collect UCR time series. the level II component of the revised circumstances of homicide as a code The level I component, like the UCR Program would furnish indepth rather than as a narrative description. current UCR, will continue to provide information on all offenses. The pri• -Distinguish among crimes crime statistics from virtually all local mary objectives of the level II collec• against businesses, crimes against law enforcement agencies in the tion are to provide national and re• individuals or households, and crimes United States. This breadth of cover• gional estimates of the incidence, against other entities. age is essential to the public and nature, circumstances, victims, and of• -Distinguish crimes against police in assessing local crime condi• fenders of all crimes reported to law residents of a jurisdiction from crimes tions. enforcement, as well as to provide against nonresidents, so as to be able crime statistics for representative to adjust for large influxes of Level " Component groups of agencies which will provide nonresidents either as daytime -Participation in the level II law enforcement agencies a base business populations or as tourists. component should be sought from all from which to evaluate local prob• -Collect value of property stolen agencies serving populations in lems. and recovered by a actual value. excess of 100,000 and a sample of at One of the key features of the -Record incident numbers on least 300 smaller agencies. level II component is its ability to pro• each arrest report to allow correlating -Part II, as well as part I, vide accurate national and regional offenses and arrests and distinguish offense data should be collected and estimates while being implemented by exceptional clearances by type in the offense-type categories used a relatively small fraction of agencies. order to increase the accuracy of should be more detailed than the In this way, the burden on local con• clearance data and provide greater current categories. trit:1utors is enormously reduced. The analytic use. -Detailed incident data agencies included in level II would be Since .the level I component will describing the nature of the criminal selected in such a way that their be comprised of law enforcement incident, including victim and offender crime statistics would be natio"nally agencies that range in size from 1 to characteristics, victim-offender and regionally representative. relationship, use of force, nature and extent of injury, and type of location, should also be collected.

October 1985 / 11 Quality Assurance data. Methods for developing 5) A series of occasional -Institute routine, ongoing audits combined estimates from the two data publications analyzing special of samples of participating UCR sources are not yet sufficiently issues about crime, primarily agencies in order to establish the developed to justify near­term plans directed at researchers; and extent of error in the system on a for integrated data analysis. 6) Other series to provide for continuing basis. ­Design the UCR system to publication of methodological -Require self-certification by allow linkage of police records to the details and technical agencies that their records system prosecution and court records documentation. meets a basic set of requirements for collected by OBTS systems. ­Issue UCR reports at least participation in UCR. UCR collects information about once a year jointly with a -Develop improved feedback to law enforcement operations­crimes corresponding report from the agencies through self-administered reported, arrests, and law enforce- National Crime Survey. proficiency tests, annual reports on ment personnel resources. A com- ­Provide a continuing analysis common audit errors, and regular plete criminal justice information capability for reconciliation of UCR reports to individual agencies on the system would, ideally, also include and NCS data, evaluating seriousness extent of edit discrepancies in their data on crime victims, crimes not re- weights, and preparing technical UCR submissions. ported to law enforcement, and what documentation and special studies. -Strengthen State UCR Program happens after arrest. No single source ­Support continued and quality assurance, including expansion can provide all these data, but with enhanced user services, including a of State program audits. the proposed redesign, UCR figures user data base with files linked over A review of UCR audit and quality can link to some degree with victim- time, the capacity to draw samples of assurance procedures at the Federal, ization statistics produced by NCS offenses for analysis either by the State, and local levels showed that and the prosecution, court disposition, UCR staff or by outside researchers, the accuracy of UCR data could not and sentencing information main- and response to public queries. be absolutely assessed. Since accu- tained by the various OBTS systems. Based on input from law enforce- rate and consistent reporting is essen- Even though the UCR, NCS, and ment officers, researchers, and other tial and widespread concern regarding OBTS data records will not be routine- UCR users, the above recommenda- reliability exists, a combined program ly linked on a case­by­case basis, the tions address stated needs for more of auditing, establishing recordkeeping ability to integrate UCR statistics with interpretation of UCR figures than is standards for contributing agencies, those of the other two entities will be currently furnished in Crime in the and providing support and feedback made possible through the above rec- United States. Law enforcement from the national and State levels was ommendations. In the long term, such agencies pointed to the additional developed. The quality assurance pro- integration could facilitate the interpre- need to identify comparable local ju- cedures should provide definite infor- tation of each system's findings and risdictions and to discuss differences mation on the extent of error and im- assist in identifying error in each in crime rates and clearances. Re- prove reporting quality. system, thus providing better esti- garding user services, it was found mates. that a more flexible analytical file was Integration with NCS and OBTS needed. ­Develop the UCR, NCS, and Publications, Analyses, and User The proposed publication plan OBTS systems as complementary Services took into account the needs to serve programs providing complementary ­Create six publication series, a variety of audiences; to provide crime statistics for multiple purposes. including: crime statistics at the national, region- The strengths of each of these data 1) An annual report that is basically al, and local levels; to provide both systems should be continued and factual but more textual and factual information and guidance on enhanced, rather than compromised interpretive than the current data interpretation; and to establish a to achieve face comparability. report; limited set of publications, but provide ­Structure the UCR and NCS 2) Quarterly releases of crime for other reports on an "as needed" data so as to permit reconciliation of counts and trends; basis. Also considered were the differ- the two. 3) Annual compilations of statistics ences in data available from the level similar to those currently in ­Develop data structures and I and level II agencies. [?~ D associated audit procedures with an Crime in the u.s.; eye toward eventual analytic 4) A series of computer­generated integration of the estimation of crime special reports to individual rates and trends from UCR and NCS agencies or groups of similar agencies;

12 I FBI Law Enforcement Bulletin Search and Seizure Policy Development and Implementation "Understanding search and seizure terminology can be the difference between success and failure in developing the policy /procedure."

The U.S. Supreme Court, in es• of the law by an officer is, in part, the By tablishing a "bright line" demarcation responsibility of the law enforcement CLARKE F. AHLERS (easily understood and applied rules) 1 agency. Research and Planning Division of permitted Government intrusion, To state simply, there are two ob• Howard County Police Department has practically outlined when the Gov• jectives to be pursued by law enforce• Howard County, MD ernment may cross fourth amendment ment agencies: (1) Implement a protected thresholds and seize physi• search and seizure policy and proce• cal evidence. Yet, many police train• dure, and (2) supplement the policy ing officers, policy planners, and law and procedure with a training docu• enforcement practitioners do not ment and program. know the law of search and seizure. Many believe search and seizure to The Goal be complex and ominous. Officers Officers will make mistakes. Real• muddle through investigatory istically, no amount of training and searches, confident that they can planning can anticipate every possible search a person under arrest, but are search situation and appropriate re• far less certain about his car, office, sponse. For these reasons, a goal of or home. Many lawful searches are 100-percent legal searches in only 90 not made because of the officer's un• percent of investigations should be certainty. expected. In Texas v. Brown, 2 for ex• Regardless of an officer's incog• ample, police officers in Fort Worth, nizance of the law, its complications TX, seized a balloon suspected of con• and pitfalls, or of the good faith under taining contraband. Though all nine which the officer acts, the Supreme Supreme Court Justices upheld the Court established a bright line demar• constitutionality of the seizure, a ma• cation for a reason. The Supreme jority could not agree on a particular Court, and by extension all lower rationale, and several Justices left courts, expect police officers to know open the question of the constitution• and obey the law. ality of the search. No agency can This article follows two prem• ises-(1) one must know the law to obey and enforce it, and (2) the re• sponsibility for appropriate application

October 1985 / 13 hope to establish ironclad procedures To keep the policy and procedure to meet every situation or be impervi• from becoming cumbersome, a sepa• ous to legal analysis. In setting the rate training guide or bulletin should expectation of 100-percent legal be prepared. This guide will facilitate searches in 90 percent of investiga• explaining the procedure and will pro• tions, though, the law enforcement vide a discussion forum for sensitive, agency fosters a thorough knowledge problematic, and complex areas. For of the law, guides its officers in en• example, no procedure could efficient• forcement, and respects the truism ly include all information regarding the that reasonable people can differ in legally and politically sensitive topic of Officer Ahlers the application of law to fact. strip searches. The training bulletin and program could, however, cover Preliminary Coordination this topic in depth. Development of policy and proce• Most local prosecutors will wel• dures regarding search and seizure come an effective search and seizure should involve the top executive of policy/procedure. Errors and omis• the agency and representatives from sions in development and implemen• the Planning and Research Section, tation may be avoided if the local the Education and Training Section, prosecutor is included in almost every the State or district attorney's office, aspect of the research and develop• and the office of law, solicitor's office, ment phase. Also, since every police or attorney general. department operates under authority Any endeavor to develop a of either local, State, or Federal Gov• search and seizure policy and proce• ernment, counsel to the Government dure must have the support of the or• should be included in the planning ganization's command personnel. In a stages. Typically, counsel is familiar paramilitary structure, this is most with the civil liability incurred by offi• easily accomplished by an order from cers either personally, or as agents of the highest authority, who must real• the Government, and can help tailor ize the need for and benefits of such the policy to curb potential civil litiga• Col. Paul H. Rappaport a policy. tion. Chief of Police While planning and research per• sonnel bear primary responsibility for Research drafting the proposed search and sei• One person should have primary zure policy/procedure, achieving the responsibility for overseeing the re• objective requires transmitting effec• search and development of the tively the information to field officers. policy/procedure. In most instances, this task should be assigned to a member of the planning staff. Re• searching this topic requires more than a simple analysis of fourth amendment law. It is necessary to re• search a number of legal and extra• legal issues and then draft policy and procedure in a number of areas.

14 I FBI Law Enforcement Bulletin ______The staff member assigned to Problems Police Officer's Status-Very gen• conduct the research should begin by Simply knowing the law is not erally, the fourth amendment is impli• contacting a professor of criminal pro• enough. For example, in the case of a cated when privacy rights are intruded cedure at any American Bar Associa• strip search, consider a State which, upon by the Government. Members of tion accredited school of law. The though it has no authoritative case a department should be directed to professor, like the prosecutor, can law on point, favors allowing law en• consider any search and/or seizure help avoid pitfalls by providing an out• forcement officers great latitude in by police to be a governmental action. line of fourth amendment applicability, conducting strip searches of arrested If any member of the department en• warrant preference, and exceptions to persons. In reviewing case law gener• courages or directs a private individual the search warrant requirement. The ally, the rationale of the court appears to acquire evidence (search and/or staff member must take time to be• to support strip searches necessary seizure), it should be considered gov• come familiar with the nomenclature of for the protection of the arresting offi• ernmental action. the fourth amendment. For example, cer. Based on this, one might recom• Probable Cause-Probable cause what one authority refers to as "fourth mend allowing random strip searches is the basis for a search warrant and amendment inapplicable" may be al• of anyone arrested. However, most should be defined and printed as part luded to as " no standing to object" people acknowledge the problems of the policy/procedure. Most search by another authority. Understanding that such a policy would create. Thus, warrant exceptions are also based on search and seizure terminology can be there is a need for policy decision to probable cause. the difference between success and buttress research and accepted prac• Search Warrant Required-The failure in developing the policy/proce• tices. department should require a search dure. warrant for every search and seizure, Next, a foundation document, Guidelines unless the search and seizure meets such as Criminal Procedure-An Anal• The following points and recom• a warrant exception. Where an officer ysis of Constitutional Cases and Con• mendations are offered as a starting truthfully applies for a warrant, and a cepts, 3 should be selected to serve pOint when drafting search and sei• neutral and detached magistrate or as a basis for research. The value of zure policy/procedure. Individual cir• judge issues the warrant, the officer such a text is in its sound analysis of cumstances, training history, and ex• should be judged by the department legal principles. perience may suggest alternatives to have prima facie proof of compli• Fourth amendment research better suited to agency needs. ance with the policy/procedure re• should occur next, with the objective Compliance-It is suggested that quirement for a search warrant. of developing a basic understanding an officer's conduct be judged (for Should the warrant fall on appeal for of the fourth amendment. Particular purposes of enforcing the policy/pro• lack of probable cause, the officer 4 attention should be given to fourth cedure) by a standard of honest and should not be penalized. amendment applicability, search war• reasonable good faith compliance Service of Search Warrants-The rant preference, and search warrant with the order. Mixed questions of law department must decide on the ac• exceptions. With respect to the ex• and fact often puzzle the brightest ceptable methods for serving a ceptions, the staff should be aware of legal scholars. However, the integrity search warrant. One suggestion is to the reason for the exceptions, the of our legal system relies on the hon• require the presence of a supervisor predicate necessary for intrusion, the esty of police officers, especially at warrant service and the photo• scope of the permitted intrusion, and when officers claim exceptions to the graphing of premises before and after any logical extensions of the excep• search warrant. In the area of prisoner a search is conducted. The objectives tion (i.e., auto exception may include searches, a professional standard of should be collecting and preserving all boats and aircraft). Once this initial re• conduct is recommended, and it seizable evidence, avoiding unneces• search is completed, a rough draft of should be reinforced in a prisoner sary damage to property, and officer the search and seizure policy/proce• search training program. safety. dure, reflecting the jurisdiction's and Stop and Frisk-The common agency's interests and needs, may be law of stop and frisk, as cited in Terry formulated. v. Ohio,s has been codified in some

October 1985 I 15 "Since all searches are judged by the constitutional umbrella called 'reasonableness,' a speculative method of justification will not suffice."

jurisdictions. In Maryland, for example, most people agree that full strip passing increasingly statutory provi• code provisions create certain admin• searches or body cavity searches are sions which allow law enforcement of• istrative responsibilities for an officer not necessary for an officer's safety in ficers to deliver suspects to compe• conducting such a " limited search." most arrest situations. Thus, the pa• tent medical personnel who may war• The policy/procedure should, at a rameters of the strip search and body rantlessly withdraw blood and/ or minimum, reference these administra• cavity search must be carefully con• breath samples to determine blood-al• tive responsibilities if they exist. sidered. cohol content. As alcohol dissipates Arrestee Search-The predicate It is recommended that a body in the bloodstream, its evidentiary for a lawful arrestee search is a lawful cavity search (other than in an emer• value diminishes during an investiga• custodial arrest. This should be de• gency) be conducted only under au• tion. Failure to know the statutory ex• fined in the policy/procedure and will thority of a search warrant and at a ceptions to a warrant requirement often be based on statute. Custodial medically safe location. Not every may mean that physical evidence in arrest provisions of the motor vehicle hospital will agree to allow such a automobile manslaughter cases is lost code should also be included. search upon its premises, even if forever solely because of officer Next, research should be con• the officer has a search warrant and unawareness. ducted on strip and body cavity the search is to be conducted by a Consent-In the area of consent, searches. While not necessarily the physician. To avoid confusion and dif• a written consent form for use by the result of search incident to arrest, the ficulty, procedures at facilities should officer should be developed. A policy usual strip search or body cavity be arranged prior to implementing the decision must be made regarding an search is conducted under some ex• policy/procedure. One consideration officer being allowed to search an ception to the search warrant require• is the use of the facilities and doctors area where lawful consent is given but ment (or simply conducted illegally). In of a penal institution within the juris• the consenting party refused to sign almost every jurisdiction, case law diction. the consent form. The agency may exists which limits the intrusion into Automobile Searches-Automo• decide, for example, that a supervisor the privacy of the individual, or literal• bile exception searches should be dis• should make this decision on a case• ly, the intrusion into the sanctity of an tinguished from inventory searches. by-case basis. individual's body. Since this area is One of the decisions that must be Inventory Search-An element rife with civil litigation, it is important made is whether, absent exigent cir• considered in evaluating inventory that a thorough evaluation of strip cumstances, officers must secure a searches is the inventory procedures searches and body cavity searches be search and seizure warrant where of the law enforcement agency. Pro• conducted. Since all searches are probable cause exists to search a car cedures must be detailed on impound• judged by the constitutional umbrella which has been impounded by the ment situations and subsequent in• called "reasonableness," a specula• police. More recent Supreme Court ventory searches. tive method of justification will not suf• cases justify a warrantless search of a Postmortem Examinations- fice. Knowing the law is essential. vehicle because of its diminished ex• Some States have laws regarding the Many problems can be avoided pectation of privacy coupled with search of dead persons by police offi• by developing a firm policy on arrest• probable cause.6 cers. The law may mandate that offi• ee search. Since the need for an offi• Evidence in DWI Cases-Another cers take possession of all valuable cer to protect himself during or after major area of the law, more open to property from the deceased and re• an arrest cannot be disputed, it is im• criminal adjudication than civil disposi• lease this property to the next of kin. portant that officers be required to tion but nonetheless of increasing po• In unattended death situations, the search arrested persons. However, litical importance, is the search and agency should procedurally assign seizure area of "evanescent evi• this duty to a particular officer, lest it dence," evidence which is capable of remain undone by any of the crime vanishing through the laws of nature scene technicians, investigators, and and science. With national attention focused on the drunk driver, and the slaughter often resulting, States are

16 I FBI Law Enforcement Bulletin patrol officers at the scene of the sionally, a conflict may arise which is prior to any supplemental procedures death. not evident to the framers of the or training. Wiretapping-Because of the policy, but which would be immediate• complex procedural requirements of ly apparent to a day-to-day practition• Conclusion wiretapping statutes, coordinating er. For example, the policy on search Using the methodology described wiretaps with the prosecutor is impor• and seizure of abandoned property here, the Howard County, MD, Police tant. It will also be necessary to con• may conflict with an agency policy on Department developed and imple• sider hostage and barricaded subject towing abandoned cars. Minor flaws mented a search and seizure policy/ situations and to coordinate agency such as this, which could be the procedure and training bulletin. The policy and needs with the local tele• death knell of an otherwise outstand• response of the State's attorney's phone company. A contract or agree• ing search policy, may easily be dis• office and county office of law has ment should be in place prior to an covered during a review by practition• been positive, and the American Civil actual hostage or barricaded subject ers. Liberties Union specifically approved situation. A word of caution is in order. Do the strip and body cavity search provi• Abandoned Property-The policy not become entrenched in philosophi• sions. For the police officer, the man• of the agency should include provi• cal differences over minor pOints of dates of the Supreme Court are now sions for conducting a thorough search and seizure law. It is important standard operating procedure. search of abandoned property or vehi• to maintain flexibility, since a well• Bright line demarcation of the Su• cles that come into the custody of crafted policy is better than no policy preme Court has created both an op• agency members. and reasonable men can disagree to portunity and a responsibility for law the mutual benefit of all parties. enforcement practitioners. The most Implementation The policy statement itself should efficient method of assuring that de• Once the rough draft of the be brief, and the accompanying pro• partmental intrusion into constitution• search and seizure policy/procedure cedure should mandate specific be• ally protected areas is lawful is has been completed, it is necessary havior by the members of the agency. through the implementation of a to begin the final process toward im• A final training document, with a cover search and seizure policy/procedure plementation. This is a sensitive letter from the executive officer, and related training documents and period, since the needs of the execu• should be completed and reviewed by programs. tive officer, planners, trainers, pros• administrators prior to implementation. ecutors, and civil attorneys may vary. Updating the Law A representative of the prosecu• Footnotes tor's office most familiar with search Criminal law changes regularly, 'See, e.g., New York v. Belton, 453 U.S. 454 (1981). dictating that a search and seizure 2 Texas v. Brown, 460 U.S. 730. 103 S. Ct. 1535, 75 and seizure case law should review l. Ed. 2d 502, 51 U.S.L.W. 4361 (1983). the draft of the search and seizure policy/procedure and training docu• 3 Charles H. Whitebread, Criminal Procedure-An Analysis of Constitutional Cases and Concepts. policy/procedure before a final copy ment and program be reviewed and • United States v. Leon, 104 S. Cl. 3405 (1984); is prepared. Once this has been done, updated as needed. A natural oppor• Massachusetts v. Sheppard, 104 S. CI. 3424 (1984). , Terry v. Ohio, 392 U.S. 1, 20 l.Ed. 2d 889, 88 S. a copy of the final draft should be dis• tunity for an annual review of the gen• Ct. 1868 (1968). tributed to all parties involved in the eral order on search and seizure is in • See, Cody v. Dombrowski, 413 U.S. 433 (1973) ; United States v. Johns, 105 S. CI. 881 (1984). preliminary coordination. Each person August, when the U.S. Supreme Court should then be advised to forward is not in session. comments in writing to the author of In addition, State and Federal the document. search and seizure decisions which The next step is to distribute a impact the parameters of permitted copy to a select group of department searches should be disseminated to search and seizure practitioners (field law enforcement practitioners. The supervisors, officers, and criminal in• prosecutor's representative can help vestigators) for their thoughts. Occa• evaluate the potential impact of court decisions on the operations of law en• forcement and should be contacted

______October 1985 / 17 Law Enforcement Coordinating Committees One District's Experience

By GERALD D. FINES u.s. Attorney and L. LEE SMITH Assistant U.S. Attorney Central District of Illinois Springfield, IL

Background wasted resources but sometimes re• ble to prosecute a white-collar crime In 1981, as a result of a recom• sulted in an investigation and pros• case in Federal court, since many mendation made by the U.S. Attorney ecution in a system less likely to State statutes treated these crimes as General's Task Force on Violent produce a conviction and eventual im• misdemeanors and looked on white• Crime, U.S. attorneys were directed prisonment. collar criminals as less threatening to by the Attorney General of the United LECC's were created to address society. States to organize a law enforcement these problems. If representatives As any experienced investigator coordinating committee (LECC) in from local, State, and Federal agen• or prosecutor who has been involved each Federal judicial district. LECC's cies had a structured forum for meet• in both State and Federal systems is were created to make better use of ing, they would be able to route these aware, each system has its advan• the combined resources of local, cases to the jurisdiction most likely to tages and disadvantages. For effec• State, and Federal investigative and produce results, i.e., conviction, im• tive law enforcement, agents and prosecutorial agencies. prisonment, or forfeiture. For example, prosecutors should use the system In our judicial system, there is until the recent enactment of the most appropriate for the particular often a choice as to whether a case Comprehensive Crime Control Act of case. should be handled by a State or Fed• 1984, a defendant found not guilty by eral authority, a particularly common reason of insanity in Federal court Implementation circumstance with white-collar crime, was returned to the general popula• In the Central District of Illinois, narcotics, and interstate property of• tion. On the other hand, several there is no single large population fenses. Oftentimes, such a decision States had provisions for involuntary center. The district is typical of much was not based on any rational criteria, commitment to mental health facilities of the Midwest in that the population but on who first established a "claim" for those people acquitted by reason to the case. This approach not only of insanity or mental illness. There• fore, it was preferable to prosecute in State court a defendant who ap• peared to have a strong insanity de• fense. Conversely, it was often desira•

18 / FBI Law Enforcement Bulletin is scattered in rural areas and small• The white-collar crime subcom• and medium-sized cities, with large• mittee set as one of its priorities the scale agricultural operations, heavy in• development of a training course for dustry, and a sizeable portion of the State and local law enforcement population involved in State govern• agents. By informing these law en• ment, the insurance industry, and forcement personnel of the availability higher education. For these reasons, of State and Federal resources, it was local investigative agencies have not believed they would be better able to developed sufficient personnel, re• solve the particular problems facing sources, and experience to handle them while investigating white-collar complex financial fraud or white-collar crimes and therefore combat this type Mr. Fines crime cases. As a result, most of of crime more effectively. these violations have been investigat• After soliciting suggestions for ed by the Federal Bureau of Investiga• possible course topics from local tion (FBI), the Postal Inspection Serv• criminal justice personnel, plans and ice, the Internal Revenue Service scheduling for the course were final• (IRS), the Illinois Department of Law ized and the necessary instructional Enforcement, the U.S. attorney's material was organized. Arrangements office, and the Illinois Attorney Gener• were made for the 5-day course to be al's Office. held on the campus of a local junior In December 1981 , the U.S. attor• college. ney for the Central District of Illinois Local, State, and Federal law en• organized the first meeting of the dis• forcement agents, State and Federal trict's LECC, with 175 prosecutors and prosecutors, investigators from the In• investigators attending. Subcommit• surance Crime Prevention Institute, a tees were formed in narcotics, violent team of instructors from the FBI crime, white-collar crime, rural crime, Academy in Quantico, VA, and a di• legislation, and long-range planning. rector of security from a local bank Each subcommittee was headed by a were called on to instruct the over 70 State or local law enforcement officer local, State, and Federal law enforce• and included State and Federal pros• ment participants. Topics covered in ecutors and investigators as partici• the sessions ranged from fraud Mr. Smith pants. schemes (both insurance fraud and In keeping with the objectives of fraud against government programs) the LECC, several joint State/Federal and domestic banking operations to investigations were started in the computer investigations and interview• areas of narcotics, public corruption, ing and interrogating techniques in and white-collar crime. Also, two State white-collar crime investigations. prosecutors were appointed special Course instructors also presented in• assistant U.S. attorneys to help on formation concerning the analysis of cases initiated by State investigators questioned documents, domestic but prosecuted in Federal court. money laundering, the Bank Secrecy Act, and grand juries, search war• rants, and forfeitures. At the end of the course, evalua• tions were solicited from the partici• pants. Each person was asked to rate on a scale of 1 to 5, with 1 being the

October 1985 I 19 "Any LECC program, as a significant key to State and Federal law enforcement cooperation, should include training sessions." highest rating, the organization, pres• were experienced agents, the more A "hands-on" experience is ben• entation, curriculum and content, and specialized sessions were better re• eficial and also permits students to usefulness of each session. General ceived. see first hand what was covered by comments and suggestions were also Another recommendation is to the lectures. For example, the onsite welcomed. plan with care. A great deal of thought explanation of bank record systems The highest ratings by the partici• and preparation was put forth by the proved to be a worthwhile exercise pants went to the instruction provided organizing committee so that each and was well-received by the stu• by FBI personnel and the visit to the phase had a well-defined assignment dents. local bank. The participants were not of responsibility. Finally, a thorough evaluation only appreciative of course material Of course, knowledgeable, expe• helps to identify strengths and weak• and handouts but also for the oppor• rienced instructors offering a variety nesses of the course and provides les• tunity to meet and learn how to help of material are the mainstay of any sons for future conferences. each other. Other comments suggest• successful training program. Courses ed a shorter course, more panels, and taught by representatives of the FBI , Conclusion more time allotted for discussion. the Insurance Crime Prevention Insti• Any LECC program, as a signifi• tute, and the State Department of cant key to State and Federal law en• Recommendations Law Enforcement were particularly forcement cooperation, should include Before attempting to organize any well-received. One recommendation training sessions. Training strengthens training program, it is essential to would be for training personnel to ex• law enforcement at all levels and en• know your audience. Responses to a change information regarding their hances coordination in the fight questionnaire sent to law enforcement area of instruction so that sessions against crime. When all levels of law agencies were used as the basis to could be more closely related to each enforcement cooperate, the communi• design our course. Both general and other. Also the duration of the course ty is better protected. specific sessions were incorporated, should be limited to 3 days. If neces• since those participating had a broad sary, a second session may be sched• range of training and experience. uled to cover additional topics. However, because most students

Big Knife

A recent search of a suspect re• vealed a weapon with which law en• forcement personnel should be familiar.

The weapon, about the size of a small pocket calculator, is a small plas• tic case containing a locking knife with a blade over 2-inches long. A small SA~ fRAN button on one side is depressed to roUCE OEPART .. release the locking mechanism for the blade of the weapon.

(Submitted by the San Francisco, CA, Police Department)

20 / FBI Law Enforcement Bulletin As noted in the Director's Message, the Comprehensive Crime Control Act of 1984, which was signed by the President on October 12, 1984, now permits the Federal Government to transfer or share forfeited property with State or local law enforcement agencies. Regardless of its value, property such as vehicles, cash, and land that are forfeited as a result of Sharing violations of certain Federal statutes can be shared with those State and local law enforcement agencies that directly participated in the seizure or Federally ForfeifefJ forfeiture. Properly

By ROSEMARY HART Associate Deputy Attorney General u.s. Department of Justice Washington, DC and LAURENCE E. FANN Unit Chief Legal Forfeiture Unit Legal Counsel Division Federal Bureau of Investigation Washington, DC ,.

" Share-the-wealth plan debuts: mately $126,000 and "[Ilabeled by Control Unit, and the Texas Depart• Funds from drug-related property drug agents as a 'marijuana-process• ment of Public Safety. sales to be split." 1 ing facility' for an international drug• Cooperative efforts among the This headline from a recent arti• smuggling gang . ..." 2 The forfeit• Federal, State, and local agencies cle in a Houston newspaper an• ure was a result of teamwork between have been increasing over the past nounced that for the first time, the Federal, State, and local law enforce• few years, especially in major drug U.S. Attorney General used newly cre• ment agencies. Following this coordi• trafficking cases. The new forfeiture ated authority to share federally for• nated effort, the Attorney General, provisions recognize that these coop• feited property with local law enforce• pursuant to a new Federal law, or• erative efforts provide benefits to all ment agencies. The property in ques• dered the proceeds from the sale of levels of law enforcement. According- tion was a 33-acre Montgomery the property to be divided equally County, TX, farm valued at approxi• among the Federal Government, the Montgomery County Organized Crime

October 1985 / 21 Iy, an express purpose of the sharing the proceedings are an action in rem provisions is to provide an incentive against the piece of property itself for present and future law enforce• and not the owner or claimant of the ment cooperation. property, e.g., United States v. One This article briefly discusses the 1979 Mercury Cougar XR-7 VIN: types of Federal forfeiture, delineates 9H93F720727. 3 The facts and circum• the types of property subject to forfeit• stances must demonstrate that there ure under violations of Federal drug is probable cause that the property laws, identifies the statutes enforced violated the Federal law. Once the by the U.S. Attorney General that property is seized, forfeiture proceed• Rosemary Hart permit sharing, and explains how ings commence. Since the proceed• State and local agencies can take ad• ings are civil and against the property, vantage of the new sharing provi• there can be a valid forfeiture whether sions. the owner is charged or convicted of a violation of a Federal statute or not. Forfeiture Provisions of Federal In a criminal forfeiture, conviction Drug Laws of the defendant precedes a separate Today, most forfeitures are a conviction of the property for forfeit• result of violations of the Federal drug ure. The facts and circumstances nec• laws. Drug traffickers can amass huge essary to forfeit the property must fortunes as a result of their illegal ac• meet a much higher standard of tivity. Traffickers often view detection proof, that of beyond a reasonable and incarceration as a "cost of doing doubt. The property is not seized until business" because the incentive of after conviction; therefore, there is an drug profits often far outweighs the increased likelihood that the violator potential of a prison term. By stripping will sell or dispose of it prior to forfeit• the violator of the ill-gotten gains, the ure, or if it is a "wasting asset," that it Government removes the primary in• will deteriorate. centive to engage in the illegal drug The two primary Federal statutes activity. Forfeiture also provides law employed by the Federal Bureau of enforcement agencies with additional Investigation (FBI) and the Drug En• Special Agent Fann valuable resources; the boats, planes, forcement Administration (DEA) in the and vehicles used in drug trafficking enforcement of drug laws are the can be forfeited and placed into offi• Comprehensive Drug Abuse Preven• cial use as effective tools to combat tion and Control Act of 1970, com• illegal activity. monly referred to as the Controlled Federal forfeiture proceedings are Substances Act (CSA),4 and the either civil or criminal, depending on Racketeer Influenced and Corrupt Or• the facts of the particular violation ganizations (RICO) Act. s The CSA and the prosecutive strategy. Al• provides for both civil and criminal for• though there are some similarities be• feiture, while RICO provides for only tween the two, the biggest differences criminal forfeiture. are the point at which the property can be seized for forfeiture and the Civil Forfeiture Under CSA legal standard of proof necessary to The types of property subject to effect forfeiture. In a civil forfeiture, civil forfeiture under CSA include:6 1) All controlled substances; 2) Raw materials and equipment

22 / FBI Law Enforcement Bulletin ______"Federal forfeiture proceedings are either civil or criminal, depending on the facts of the particular violation and the prosecutive strategy."

used to manufacture controlled ings on the property, tangible person- uralization Service (INS). Figure 1 lists substances; al property, such as cars and jewelry, all 11 of these statutes and the inves- 3) Property used as a container for and intangible personal property, such tigative bureau(s) that enforce them. controlled substances or a as stocks and bonds.s container for materials and Using the Sharing Provisions equipment used in the Sharing Provisions State and local law enforcement manufacture of controlled Attorney General Authority agencies can take advantage of the equitable sharing provisions of the substances; Pursuant to the Comprehensive new law in two ways. First, they can 4) Vehicles, boats, and planes Crime Control Act of 1984,9 the Attor- join forces with a U.S. Department of used to transport or facilitate the ney General or a designee is author- Justice investigative bureau in a Fed- transportation of controlled ized to make an " equitable" transfer eral investigation and share in any substances; of the forfeited property "[s]o as to re- property forfeited as a result of their 5) Books, records, and research flect generally the contribution of [the direct participation in the seizure or materials used in violation of State or local law enforcement forfeiture. Second, they can request CSA; agency who directly participated] in that one of the investigative bureaus 6) All money, negotiable any of the facts which led to the sei- " adopt" a seizure they have made instruments, securities, or other zure or forfeiture of such property." 10 and then request an equitable share things of value exchanged for a The Attorney General can authorize of that property once it is forfeited. controlled substance; all the transfer of the actual property, or Adoptive seizures arise in situa- proceeds traceable to such an as in the Texas case mentioned tions wherein a State or local agency exchange; moneys, negotiable above, sell it and share the net pro- has made a seizure but determines instruments, and securities used ceeds. The Attorney General has del- that a State forfeiture proceeding is to facilitate a violation of CSA; egated this authority to the head of not possible or that a Federal forfeit- and the Federal investigative bureau that ure proceeding would be more advan- 7) Real property and any seized the property, the Director, tageous. In those cases, the State or improvements thereon used or Asset Forfeiture Office, Criminal Divi- local agency may request a Federal intended to be used to commit sion, U.S. Department of Justice, or investigative bureau to adopt the sei- or facilitate the commission of a the Deputy Attorney General of the zure and commence Federal forfeiture felony violation of CSA. United States. This delegation of au- proceedings. thority depends upon the value of the Criminal Forfeiture Under CSA and Cases will be accepted for adop- property and whether the nature of RICO tion only when there is a valid pros- the forfeiture proceedings are either ecutorial purpose. However, since the CSA provides for the criminal for- judicial, i.e. , adjudicated in Federal FBI, PEA, and INS differ in their poli- feiture of any proceeds or property court, or processed administratively by cies for accepting adoptive seizures, derived from the proceeds of a CSA the investigative bureau that seized State or local agencies should contact felony violation, any property used or the property. The decision to transfer the appropriate investigative bureau intended to be used to commit or fa- or share the property is not subject to for further guidance. cilitate the commission of a CSA review. felony, or any interest in, claims The Federal forfeiture provisions Applying for an Equitable Share against, and property or contractual that permit equitable sharing of forfeit- All State or local law enforcement rights affording a source of control ed property with State or local law en- agencies that directly partiCipated in a over a continuing criminal enterprise forcement agencies apply to a Federal seizure or forfeiture may re- (CCE).1 number of Federal laws. In addition to RICO provides for the criminal CSA and RICO, sharing is permitted forfeiture of real property and build- with respect to nine nondrug­related statutes. Eight of these nine statutes are enforced by the FBI and one is enforced by the Immigration and Nat-

______October 1985 / 23 "Th~ new Federal forfeiture provisions recognize the crucial role that State and local agencies play in Federal law enforcement efforts."

quest an equitable share of the forfeit- The application should be submit- FBI and DEA: ed property. These agencies should ted within 30 days following the sei- 1) Controlled Substances Act file their requests with the Department zure of the property in a joint investi- 2) Racketeer Influenced and of Justice investigative bureau that gation, or in the case of an adopted Corrupt Organizations Act handled the forfeiture. Before the re- seizure, within 30 days after the prop- FBI quest is. filed, a participating agency erty is transferred to the Federal in- 1) Interstate and Foreign should be mindful of the following vestigative bureau. Following the for- Commerce-Gambling conditions: feiture, the applicant will be notified of Devices-Transportation 1) The Federal forfeiture must arise the sharing decision. Requesting Prohibited (codified at 15 from a statute enforced by the agencies must pay expenses associ- USC 1177) (referred to as Department of Justice. ated with the forfeiture of the property Transportation of Gambling 2) The forfeiture proceedings must and any mortgages or liens on the Devices) be conducted in accordance property, prior to transfer. A full ac- 2) Organized Crime Control Act with procedures established counting of these outstanding obliga- of 1970 (codified at 18 USC pursuant to U.S. Customs laws. tions will be furnished to the request- 1955) (referred to as 3) The requesting State or local ing agency before it is necessary to Prohibition of Illegal Gambling agency must be designated as a make a commitment to accept the law enforcement agency under Businesses) property. 3) Omnibus Crime Control and applicable State law. Conclusion Safe Streets Act of 1968 4) All transferred or shared (codified at 18 USC 2513) property must be used for law The new Federal forfeiture provi- enforcement purposes. (referred to as Wire sions recognize the crucial role that Interception and Interception 5) The property must be State and local agencies play in Fed- of Oral Communications) transferred directly to the eral law enforcement efforts. In an in- 4) Copyrights Act (codified at 17 participating State or local creasing number of cases, the Depart- USC 509) agencies or by pass­through ment of Justice investigative bureaus 5) Child Protection Act of 1984 provision from a general fund. are finding that their investigations (codified at 18 USC 2253 and The participating agencies should would have been more difficult, and in 2254) file their request using the "Applica- some cases, impossible, if they had 6) Motor Vehicle Theft Law tion for Transfer of Federally Forfeited not had the benefit of able assistance Enforcement Act of 1984 Property" (DAG­71), which is avail- from their State and local counter- (codified at 18 USC 512) able from local or regional offices of parts. In recognizing the role of State 7) Crimes and Criminal the FBI, DEA, or INS. The head of the and local agencies in Federal investi- Procedure (codified at 18 requesting agency or a designee gations, the new sharing provisions USC 1762) (referred to as should complete this form. Applicants authorize the Attorney General to Prison-Made Goods) may use one form to request more transfer to participating agencies an 8) Seizure of Arms and Other than one piece of property or to re- equitable share of the forfeited prop- erty. The new law will bolster law en- Articles Intended for Export quest a combination of property and (codified at 22 USC 401) proceeds of sales arising from the forcement efforts at all levels and en- same seizure in the investigation. If courage future cooperative efforts. INS the investigation results in another 1) Immigration and seizure at a later date, the requesting Footnotes Naturalization Act (1952) agency may submit another applica- 1 The Houston Post. 217185. page 12­A. 'Id. (codified at 8 USC 1324) tion. '666 F.2d 228 (5th C,r. 1982). (referred to as Bringing in and 421 USC 80t. ' 18 USC 1962. Harboring Certain Aliens) '21 USC 88 1(a). '21 USC 853(a). 818 USC 1963(b). 'Pub. L No. 98­473. 98 Stat. 1837 (1984) '021 USC 881(e).

24 I FBI Law Enforcement Bulletin ______

------Computerized Business Records As Evidence Required Predicates to Admission

"Courts . . . demand a greater factual showing of genuineness before computerized documents may be admitted as evidence."

As the number of white-collar and Recently, courts have employed By financial crime investigations in• these rules of evidence to test the ad• JOHN GALES SAULS creases and the computerization of missibility of documents that have business records becomes pervasive, been created using electronic comput• Special Agent the need to use data stored in com• ing equipment. These rules, modified FBI Academy puters as evidence in criminal trials is through the evolutionary process of Legal Counsel Division likewise growing. Courts traditionally common law and by the legislative en• Federal Bureau of Investigation have favored hearing evidence from actment of evidence codes such as Quantico, VA witnesses who have firsthand knowl• the Federal Rules of Evidence, work edge of the matter in question.1 Such to ensure the fidelity of computer-re• spoken evidence has been preferred lated evidence. Using these rules as a Law enforcement officers of other in part because it provides the trier of basis, courts have required new factu• than Federal jurisdiction who are fact an opportunity to observe the de• al predicates for the admission of interested in any legal issue discussed meanor of witnesses and see their documents created and stored in this article should consult their legal credibility tested through cross-exami• through the use of electronic comput• adviser. Some police procedures ruled nation.2 However, where it is impracti• ing machines. permissible under Federal calor impossible for a witness to If computerized documents are to constitutional law are of questionable relate needed information, courts will be used as evidence in criminal pros• legality under State law or are not admit documents subject to certain ecutions, investigators must collect permitted at all. rules of evidence that are intended to the necessary facts to satisfy both the serve as substitutes for the usual regular requirements for admission of tests of credibility through observation documents and the special rules for of demeanor and cross-examination.3 computerized evidence. This article These tests of credibility are: (1) The discusses the predicate facts that requirement of authentication, (2) the must be presented to offer success• " best evidence rule," and (3) the rule fully into evidence business records against hearsay evidence. These rules that have been stored by computer demand that certain facts regarding processes. It begins with a preliminary the origin and keeping of documents discussion of the three basic eviden• be presented prior to their admission tiary requirements for admission of as evidence. documents. Next, cases decided under the common law and various evidence codes involving computer• ized documents are examined. Finally,

October 1985 / 25 some recommendations are offered to under certain circumstances, the law assist investigators gathering comput• allows the introduction of a summary erized records. of the original document where that document is so large that its introduc• Authentication tion would be unduly burdensome. 9 Documents created using a computer Proper authentication requires the that are offered into evidence must be establishment, with facts, of the genu• either original or meet the require• ineness of a document. 4 Facts that ments of one of the exceptions to the are helpful in establishing authentica• best evidence rule. Special Agent Sauls tion include those that reveal by whom and how a document was cre• Rule Against Hearsay ated and where and how it has been kept since its creation.s In short, au• The rule against hearsay requires thentication is a showing that a docu• that before a document can be ac• ment is actually what it is claimed to cepted into evidence to prove the be. Showing how the document was truth of the information it sets forth, created and stored is fairly simple some characteristic of truthfulness when documents are created using must be present to serve as a substi• pen and paper. However, establishing tute for the usual tests of observation how a document written by use of a of demeanor and cross-examination.'o computer has been created and If a live witness states that he saw a stored is a more complex task be• certain person take money from a cause the recording process involves victim, the truthfulness of this witness electronic activity that is not readily can be tested in court. However, if observable. Courts have expressed that same person creates a document suspicion about invisible computer that relates the taking of the money processes and demand a greater fac• and the document is presented in evi• tual showing of genuineness before dence, the statement's truthfulness computerized documents may be ad• cannot be challenged by the same mitted as evidence. 6 methods. In that case, the truthful• ness of the statement must be sug• gested by circumstances surrounding Best Evidence Rule the creation of the document before a The best evidence rule requires court will allow it to be considered by that the original document, whenever the trier of fact. possible, be presented in court? This Exceptions to the rule against requirement is satisfied by establish• hearsay have evolved to allow for the ing that the document presented is admission of statements made under the genuine original or that an excep• special circumstances that suggest re• tion to the best evidence rule should liability." The most commonly em• be invoked. One exception to the best ployed exception involving computer• evidence rule permits a true copy to ized documents relates to records be used when it is impractical or im• prepared in the regular course of a possible to present the original. 8 Also, business' operation.'2 A business generally attempts to keep accurate records of its activities because such records are necessary for its success• ful operation. Because of this motiva•

26 I FBI Law Enforcement Bulletin "One exception to the best evidence rule permits a true copy to be used when it is impractical or impossible to present the original."

tion for accuracy, these records are consistent with the realities of was first united into a single record. considered sufficiently reliable to be current business methods. The law Comparing the computerized system admitted as an exception to the rule always seeks the best evidence to a manual ledger book system, the against hearsay.1 3 Computerized busi• and adjusts its rules to court held the computerized record ness records prepared in the regular accommodate itself to the rather than the receipt blocks consti• course of business may also qualify advancements of the age it tuted the original record .17 for admission under this exception to serves." 16 Having determined that the com• the rule against hearsay. Again, due The question of authentication puterized record was the original, the to the invisible nature of computer was apparently not raised by the liti• court next addressed whether the processes, courts will require more gants in King. This is probably be• printout presented in court was in fact facts regarding the methods of prepa• cause the court had an abundant fac• a duplicate of the record stored by ration and storage than is demanded tual basis for finding that the comput• computer on magnetic tape, and for noncomputerized business rec• er printouts were genuine. The print• therefore, inadmissible under the best ords.14 outs were records of the Murdock Ac• evidence rule. In that regard, the court ceptance Corporation. The corpora• ruled as follows: Computerized Documents and the tion 's assistant treasurer testified that " Records stored on magnetic Common Law he was in charge of the data process• tape by data processing machines One of the first appellate courts ing department at Murdock's home are unavailable and useless except in the United States to consider the office and that the computerized ac• by means of the print-out sheets admissibility of computerized docu• counting records were maintained such as those admitted in evidence ments was the Supreme Court of Mis• under his supervision. He also gave a in this case. In admitting the print• sissippi. In King v. State ex reI Mur• very detailed explanation of how the out sheets reflecting the record dock Acceptance Corporation,1 5 a records were created, maintained, and stored on the tape, the Court is notary (King) was sued to collect the reproduced. actually following the best evidence balance of a note that had been se• King did address the issue of rule. We are not departing from cured by property pursuant to a deed whether the computer printouts were the . . . rule, but only extending its of trust which King had notarized. The original records for purposes of the application to electronic record notarized Signatures were proved to best evidence rule. The court first keeping. " 1a be forged in a foreclosure action, considered whether the computerized Therefore, for purposes of the best which made the deed of trust worth• records stored on magnetic tape were evidence rule, the court held that the less, and the holder of the note (Mur• original business records. Based on printout of the computerized record dock) was seeking to collect the bal• testimony, the court found that a was the original document. ance due from King. Computerized record of payments on a Murdock ac• Since the computerized docu• records of Murdock were introduced count was originally made on " receipt ment was offered in evidence to at trial to prove what payments had blocks" at branch offices. These re• prove the truth of its contents, a been made on the note and establish ceipt blocks were then forwarded to showing had to be made that the the balance due. The Mississippi court the home office where they were veri• record was sufficiently trustworthy to noted that King was the first case re• fied. The information was then fed allow for its admission under an ex• quiring it to rule on the admissibility of into the computer as it would have ception to the rule against hearsay. computerized records and applied the been entered into standard ledger The court held that the records in common law rule as follows: books in a comparable manual ac• question fell within the bounds of the " The rules of evidence governing counting system. The receipt blocks hearsay exception for records kept in the admission of business records were kept for a period of time, micro• the regular course of business. The are of common law origin and have filmed, and then destroyed. The com• court noted that it had previously ap- evolved case by case, and the puterized information recorded on Court should apply these rules magnetic tape was regarded by Mur• dock as its permanent record of the transaction and was the place where the series of recorded transactions

October 1985 / 27 "While the Federal Rules of Evidence allow for the introduction into evidence of computerized business records ... courts require a greater factual foundation than is required for noncomputerized records." proved the admission of manually pre• as an exception to the hearsay rule against hearsay. While the Federal pared business records without requir• because the fact that they are Rules of Evidence are based on the ing the persons preparing those regularly maintained records upon previously discussed common law records to testify.19 In ruling that the which the company relies in precepts, they merit separate discus• person making the computer entries conducting its business assures sion because in some ways they need not testify, the court set forth their trustworthiness. The rules of modify the common law rules. some special requirements for the ad• evidence governing the admission Authentication is dealt with in rule mission of business records main• of business records are of common 901 . The rule states that tained using electronic computing ma• law origin and have evolved on a the " . . . requirement of authentica• chines. The court held that the offeror case-by-case basis to keep pace tion or identification as a condition of such evidence must show: with the technology of current precedent to admissibility is satisfied "... (1) that the electronic business methods of record by evidence sufficient to support a computing equipment involved is keeping . . . . Even though the finding that the matter in question is recognized as standard equipment, scrivener's quill pens in original what its proponent claims." 24 Thus, (2) the entries are made in the entry books have been replaced by authentication under the Federal regular course of business at or magnetic tapes, microfiche files and Rules of Evidence is based on the reasonably near the time of the computer print-outs, the theory common law requirement that before happening of the event recorded, behind the reliability of regularly evidence is admitted, there must be a and (3) the foundation testimony kept business records remains the showing that it is genuine. satisfies the court that the sources same and computer-generated The common law best evidence of information, method and time of evidence is no less reliable than rule survives in rule 1002 of the Fed• preparation were such as to original entry books provided a eral Rules of Evidence. This rule indicate its trustworthiness and proper foundation is laid." 22 states that "to prove the content of a justify its admission." 20 In Brandon, foundation requirements writing, recording, or photograph, the While the admissibility of computer for computerized business records original writing, recording, or photo• printouts in King was based on were stated as follows: graph is required ...." 25 The Fed• common law precepts, the court re• " [I]t must be shown that the eral Rules of Evidence clearly envi• quired a more-detailed foundation electronic computing equipment is sion the use of computerized evi• than is necessary for noncomputer• standard, that the entries are made dence, since the definition of " writ• ized records. in the regular course of business at ings" for purposes of rule 1002 in• cludes " letters, words, or numbers, or The requirements set forth in or reasonably near the time of the their equivalent, set down by . . . King for the admission of computer• happening of the event recorded, magnetic impulse, mechanical or elec• ized business records are equally ap• and that the testimony satisfies the tronic recording, or other form of data plicable in criminal prosecutions. In court that the sources of compilation." 26 Rule 1002 's demand Brandon v. State, 21 the Supreme information and method and time of for original documents is subject to a Court of Indiana approved the admis• preparation were such as to number of exceptions, and courts sion of computerized telephone indicate its authenticity and generally admit a duplicate of the records in a prosecution for bank rob• accuracy and justify its acceptance original except where "a genuine bery. The court stated the justification as trustworthy. " 23 question is raised as to the authentici• for the business records exception to ty of the original," 27 or where it would the hearsay rule as follows: Computerized Documents and the be "unfair to admit the duplicate in "The theory behind this rule is Federal Rules of Evidence lieu of the original." 28 Because of the that regularly maintained business The Federal Rules of Evidence, overwhelming volume of documents records are admissible in evidence adopted for use in all Federal courts likely to be encountered with comput• and which have served as a model for erized evidence, the Federal Rules of a number of State evidence codes, address the issues of authentication, the best evidence rule, and the rule

28 I FBI Law Enforcement Bulletin ______Evidence also allow summaries of tual foundation than is required for kept records" exception by holding documents to be introduced where noncomputerized records. For exam• that "the original source of the com• " [tjhe contents of voluminous writings, ple, United States v. Scholle 34 in• puter program must be delineated, recordings or photographs ... cannot volved a Federal narcotics conspiracy and the procedures for input control conveniently be examined in court prosecution that took place after including tests used to assure accura• ...." 29 However, where summaries adoption of the Federal Rules of Evi• cy and reliability must be present• are used, the original must be made dence. The Government introduced ed ." 37 This suggests a strong prefer• available to opposing parties for exami• into evidence computer printouts from ence for expert testimony regarding nation.3o a Drug Enforcement Administration the computer and records system The admissibility of hearsay is (DEA) computer retrieval system whenever computerized business governed by rules 801 through 806 of called System to Retrieve Information records are offered into evidence.38 the Federal Rules of Evidence. Hear• from Drug Evidence (STRIDE). This say is defined as "a statement, other system stored data reflecting the Computerized Documents and than one made by the declarant while physical characteristics of drugs State Evidence Codes testifying at the trial or hearing, offered seized and tested in DEA's eight re• A case decided by the Connecti• in evidence to prove the truth of the gional laboratories across the country. cut Supreme Court, American Oil Co. matter asserted." 31 The Federal Rules Characteristics recorded included the v. Valenti, 39 illustrates how State evi• of Evidence include an expanded ver• types of drugs, their potency, compo• dentiary statutes based on common sion of the common law business nents, dilutants, location collected, law precepts achieve results similar to record exception which allows for the date analyzed, packaging information, those reached in King and Scholle. admission of: and price. The printouts presented in American Oil Company sought to col• " [aj memorandum, report, or data Scholle were offered as evidence that lect money from a surety after the compilation, in any form, of acts, cocaine seized in two separate in• principal debtor (Valenti) refused to events, conditions, opinions, or stances during the investigation was make payments. American Oil sought diagnoses, made at or near the the product of a single drug organiza• to prove the amount it was owed time by, or from information tion and conspiracy. through the introduction of computer transmitted by, a person with Authentication of the printouts printouts summarizing the state of the knowledge, if kept in the course of presented little difficulty. Donald John• principal debtor's accounts. The a regularly conducted business son, Section Chief of the Investigative issues of authentication and best evi• activity, and if it was the regular Service Section of DEA and the dence were not raised. Instead, the practice of that business activity to founder of STRIDE, identified the court was asked to determine whether make the memorandum, report, printouts as a product of the sys• American Oil had satisfied the require• record, or data compilation . . . ." 32 tem and described how the system ments of the business records excep• For purposes of this exception, busi• functioned. This was sufficient to dem• tion to the hearsay rule. That excep• ness is broadly defined and "includes onstrate that "the matter in question tion, as then codified in the Connecti• business, institution, association, pro• [was] what its proponent claim[ed]."35 cut General Statutes, provided as fol• fession, occupation, and calling of The admissibility of the printouts lows: every kind , whether or not conducted was also challenged on hearsay " Any writing or record, whether in for profit. " 33 grounds. While holding the printout the form of an entry in a book or qualified as an admissible business While the Federal Rules of Evi• otherwise, made as a memorandum record, the court expressed concern dence allow for the introduction into or record of any act, transaction, regarding the use of computerized evidence of computerized business occurrence or event, shall be business records. Cautioning that the records in a fashion that is somewhat admissible as evidence of such act, ". . . complex nature of computer broader than the traditional common transaction, occurrence or event, if storage calls for a more comprehen• law rule, courts require a greater fac• sive foundation," 36 the court added to the requirements of the "regularly

October 1985 / 29 "Courts must be able to determine from the evidence presented that computerized documents are genuine, trustworthy, and probative."

the trial judge finds that it was processing program. In view of the cy and reliability, the mechanical oper• made in the regular course of any complex nature of the operation of ations of the machine, and the mean• business, and that it was the regular computers and general lay ing and identity of the records them• course of such business to make unfamiliarity with their operation, selves. The court noted in addition: such writing or record at the time of courts have been cautioned to take " . . . factors listed regarding the such act, transaction, occurrence or special care 'to be certain that the methods of preparation are not event or within a reasonable time foundation is sufficient to warrant a intended to be exhaustive. A trial thereafter." 40 finding of trustworthiness and that court may require further proof as is The court held that computer printouts the opposing party has full necessary to justify the admission qualified as a "record" under this stat• opportunity to inquire into the of a computer record." 45 ute, noting that such a holding "re• process by which information is fed The court also required that a com• flects the revolution in data process• into the computer.' "43 puter printout must have been made ing that is part of modern reality." 41 A New Jersey appellate court in in the regular course of business The court stated that inclusion of Monarch Federal Savings and Loan rather that specifically for purposes of computer business records within this Association v. Genser 44 also ad• trial.46 exception to the hearsay rule was ap• dressed the reliability of computerized propriate " because computer records business records. The court set strict Nonbusiness Computerized are part of ordinary business activities, rules regarding what facts must be Documents created for business rather than for presented before computer printouts Since the computerized business litigation purposes, [and] they carry will be accepted in evidence under records have been accepted in many with them the assurance of regularity New Jersey's evidence code. The courts,47 investigators may attempt to that is a large element in establishing court held that in addition to the facts introduce nonbusiness computer their trustworthiness." 42 The court required for the admission of noncom• records in a similar fashion.48 While was not willing, however, to embrace puterized business records, the propo• this article does not purport to ad• computer records without some reser• nent of computerized records must dress the topic of nonbusiness com• vation. Accordingly, the court suggest• show (1) the methods and circum• puterized documents, several general ed in the following quotation the desir• stances of the computer record's principles can be discussed. Authenti• ability of having expert testimony re• preparation, (2) the type of computer cation and best evidence require• garding the creation and processing employed, (3) the permanent nature ments for nonbusiness records would of computerized business records. of the record storage, (4) how daily be similar to those for computerized The court said: processing of information to be fed business records, though there is sup• "Business records that are into the computer was conducted re• port for the position that authentica• generated by computers present sulting in permanent records, (5) that tion requirements are reduced where structural questions of reliability that the sources of information from which evidence is taken from the posses• transcend the reliability of the the printout was made have been sion of a criminal defendant.49 Howev• underlying information that is specified, the original source of the er, since the business records excep• entered into the computer. computer program delineated, and the tion is unavailable, either a substitute Computer machinery may make reliability and trustworthiness of the exception to the rule against hearsay errors because of malfunctioning of information fed into the computer es• must be found or it must be estab• the 'hardware,' the computer's tablished, and (6) that the methods lished that the offered evidence is not mechanical apparatus. Computers and circumstances of preparing the hearsay. In that regard, an out-of• may also, and more frequently, computer printout are set out, includ• court statement by a defendant or make errors that arise out of ing the competency of the computer one of his co-conspirators is by defini• defects in 'software,' the input operators, the acceptance of the com• procedures, the data base, and the puter used as standard and efficient equipment, the procedure for the input and output of information, including controls, tests, and checks for accura•

30 / FBI Law Enforcement Bulletin ______tion not hearsay.50 Thus, computer- as standard equipment and that the .. 383 A.2d 475 (N.J. Super. St. Ct. Ch. Div. 1977). ··Id. at 488. ized records created by a criminal de- sources of information and method of .. Id. at 486. There is considerable dispute on this fendant or his co­conspirators would preparation satisfy the requirements point. For acontrary holding, S88 Commonwealth V. Hogan, 387 N.E.2d 158 (Mass. 1979). also be non hearsay and admissible,51 for trustworthiness. Courts must be '7 Monarch, supra note 44, at 482 (ciUng numerous cases). if the requirements of proper authenti- able to determine from the evidence .. A logical analysis might follow the reasoning that cation and the best evidence rule are presented that computerized docu- the fact acomputer was used to create adocument instead of pen and paper is irrelevant provided aproper met. Information offered as the basis ments are genuine, trustworthy, and foundation Is laid for admission and the opposing party Is of expert opinion, including computer- probative. The importance of comput- given an opportunity to challenge the evidence. Cf. United States V. De Georgia, 420 F.2d 889 (9th Clr. ized data, is also outside the realm of erized evidence necessitates that in- 1969). S88 also Palmer V. A. H. Robbins Co., Inc., 684 excludable hearsay. 52 A document of- vestigators carefully gather the re- P.2d 187 (Colo. 1984 en bane). 4. Wharton, Criminal Evidence see. 521 (13th ed. fered to prove something other than quired predicate facts for its admis- 1972). But see United States V. King, 472 F. 2d 1(9th Cir. 1973), cert. denied sub nom. Anas V. United States, the truth of its contents, such as sion. 414 U.S. 864 (1973). knowledge, intent, or absence of mis- 5OFED. R. EVID. 801 (d)(2)(A) and 801 (d)(2)(C). • , Cf. United States v. Bruner, 657 F.2d 1278 (D.C. take, is also considered nonhearsay.53 Clr.1981). Therefore, investigators confronted • 2 FED. R. EVID. 703, cf. United States V. Footnote. Bastanipour, 697 F.2d170 (7th Cir. 1982), cert denied, with nonbusiness computerized 1 See generally McCormick, Handbook on the Law of 460 U.S. 1091 (1983). Evidence, sees. 244­247 (2d ed. 1972). '3 See United States V. Bruner, supra note 51 . records should make inquiry to see if , Id. see. 245. they are admissible under any of , See generally id. sec. 245. 'Id. see. 218. these principles or other recognized • See generally id. sees. 219­224. exceptions to the rule against hear- • See United States v. Russo, 480 F.2d 1228 (6th Cir. 1973), cert. denied, 414 U.S. 1157 (1973). say. 7 McCormick, supra, sec. 230. • S88 generally id. sees.237­240. • State v. Kane, 594 P.2d 1357 (Wash. Ct. App. Conclusion 1979); S88 also FED. R. EVID. 10OS. 10 See generally McCormick, supra, see. 245 It is essential that a proper factu- 11 Id. " S88 Bender, David, Computer Law Litigation, see. al foundation be laid so that a court 6.02[IJ (1984). may find that the process of creating " Id. see. 6.01 [3J. .. Id. see. 6.02[6J. and maintaining computerized busi- 1. 222 So.2d 393 (1969). ness records is as reliable as it would ,. Id. at 397. 17 Id. be had the record been made by pen ,. Id. at 398. ,. Id. at 397, 398. and paper. The process of writing with 20 Id. at 398. a pen on paper is known to us all. For 21 396 N.E.2d 365 (1979). " Id. at 370. computerized documents to be ac- '3 Id. cepted, the process of computerized .. FED R. EVID. 901(a). ,. FED R. EVID. 1002 creation must also become familiar to ,. FED R. EVID. 1001(1). courts. In meeting the evidentiary re- 27 FED R. EVID. 1003. 2·1d. quirements of their jurisdictions for the .. FED A. EVID. 1006. admission of computerized docu- 30 Id. " FED A. EVID. 801 (c). ments, investigators must discover de- " FED R. EVID. 803(6). "Id. tailed facts about the involved com- ,. 553 F.2d 1109 (8th Cir. 1977), cert. denied, 434 puter equipment, programs, methods U.S. 940 (1977). 3. FED R. EVID. 901. of operation, and the identity of expert 36 United States V. Scholle, supra note 34, at 1125. witnesses who may assist in familiariz- " Id. ,. See United States v. Russo, supra note 6, (noting ing a court with these facts. The pros- that Ioundation witnesses were qualified as experts by ecution must be prepared to show education, training, and experience). 30 426 A.2d 305 (1979). that the computer used is recognized .a /d. at 308.

October 1985 I 31 WANTED BY THE lJ51 g3U

Because of the time factor in printing the FBI Law Enforcement Bulletin, there is the possibility this fugitive has already been apprehended The nearest office of the FBI will have current information on this fugitive's status.

Mac Edward Williams Description Caution Mac Edward Williams, also known Age ...... 44, born February Williams, a reported narcotics as Lyle Bargo, Ikey Joe Chadwell, Joe 6, 1941, Harlan, user, is being sought for escape while Ikey Chadwell, Joe Dillman, Robert KY. awaiting trial for a murder in which the Gilfert, David Millwright, Buddy Heigh!...... 6'1". victim was shot to death. He is Williams, Edward Mac Williams, Weigh!...... 170 pounds. reportedly armed with several pistols William H. Winfrey, and others Build ...... Medium. and a sawed-off shotgun. He is an Hair ...... Brown. escape risk and should be considered Wanted for: Eyes ...... Blue. armed and dangerous. Interstate Flight-Murder; Escape Complexion ...... Medium. Race ...... White. Notify the FBI The Crime Nationality ...... American. Any person having information Mac Edward Williams is being Occupations ...... Farmer, golf which might assist in locating this sought by the FBI for unlawful flight to caddie, laborer. fugitive is requested to notify avoid prosecution for murder. Scars and Marks .... 3-inch scar little immediately the Director of the Williams, a reported narcotics user, is finger of right Federal Bureau of Investigation, U.S. wanted in connection with escaping hand; 4-inch scar Department of Justice, Washington, from the Harlan County, KY, jail on near left elbow; DC 20535, or the Special Agent in July 3, 1974, following his arrest for abdominal Charge of the nearest FBI field office, the July 1973 murder of a man who surgical scar; the telephone number of which was shot with a .45-caliber revolver tattoos: Tulip, left appears on the first page of most and then buried in a pile of sawdust in bicep; Dog, right local directories. Harlan County. bicep; two hearts A Federal warrant was issued on and letters "MS," Classification Data: December 6, 1974, at Pineville, KY. right forearm; NCIC Classification: "LOVE" on P0181959132013151209 fingers of right Fingerprint Classification: hand; " MINE 18 0 1 U-r 13 Ref:-.!L AND YOURS" on L 17 U 17 chest. Remarks ...... Known to wear a 1.0.4975 mustache, goatee, and sideburns at times. Social Security Numbers Used ...... 400-56-3230; 403-62-1229. FBI No ...... 417485 D. Right ring fingerprint

32 / FBI Law Enforcement Bulletin ______Change of l?~~ Address Law Enforcement Bulletin Not an order form

Complete this form and return to: Name

Director Title Federal Bureau of Investigation Address Washington , DC 20535

City State Z,p

Questionable Pattern

This pattern, at first glance, appears to be a central loop-type whorl. A closer examination, however, reveals the lack of a recurve in front of the inner delta. This pattern is classified as a loop with seven ridge counts. However, a reference search would be conducted as a central pocket loop-type whorl with a meet tracing. u.s. Department of Justice Second Class Mail Postage and Fees Paid Federal Bureau of Investigation Federal Bureau of Investigation ISSN 0014-5688

Washington, DC 20535

Official Business Penalty for Private Use $300 Address Correction Requested

The Bulletin Notes

Communications Officer Pamela Harrington of the St. Clair County, MI , Sheriff Department received a calion a May 1985 afternoon from a mother whose baby had stopped breathing and was turning blue. Communications Officer Harrington was able to calm the mother and give her instruction on how to administer CPR to the child. The local hospital credits this instruction with saving the life of the child, and the Bulletin joins Ms. Harrington's superiors in recognizing her vital role.

Officer Harrington