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August 2005 Volume 74 Number 8

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

Robert S. Mueller III Director

Contributors’ opinions and statements Features should not be considered an endorsement by the FBI for any policy, program, or service.

The attorney general has determined Resurrecting Cold Case The NCAVC offers assistance to law that the publication of this periodical is Serial Homicide Investigations 1 enforcement agencies investigating necessary in the transaction of the several types of cases, including cold public business required by law. Use By Leonard G. Johns, of funds for printing this periodical has case homicides. been approved by the director of the Gerard F. Downes, Office of Management and Budget. and Camille D. Bibles The FBI Law Enforcement Bulletin (ISSN-0014-5688) is published monthly by the Federal Bureau of Reducing a Guilty Suspect’s Investigators who understand and apply Investigation, 935 Pennsylvania Resistance to Confessing 13 criminological theories may develop more Avenue, N.W., Washington, D.C. convincing themes during interrogations, 20535-0001. Periodicals postage paid By Brian Parsi Boetig at Washington, D.C., and additional resulting in more confessions. mailing offices. Postmaster: Send address changes to Editor, FBI Law The Motor Vehicle Exception This is one of the exceptions to the Enforcement Bulletin, FBI Academy, search warrant requirement that allows Madison Building, Room 201, By Edward Hendrie 22 Quantico, VA 22135. an officer to search all or part of a motor vehicle to the same degree as if he had Editor a search warrant. John E. Ott Associate Editors Cynthia L. Lewis David W. MacWha Departments Bunny S. Morris Art Director Denise Bennett Smith 7 Unusual Weapon 21 ViCAP Alert Assistant Art Director Ring Knife Truck Driver Serial Killings Stephanie L. Lowe

This publication is produced by 8 Perspective members of the Law Enforcement Excessive Force 101 Communication Unit, Training and Development Division.

Internet Address [email protected]

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

ISSN 0014-5688 USPS 383-310 Resurrecting Cold Case Serial Homicide Investigations By LEONARD G. JOHNS, M. S., GERARD F. DOWNES, and CAMILLE D. BIBLES

“It requires a singular focus in committing the actual crime, quite cold-bloodedly.”1 — Robert Spangler

pproximately one- third of all homicides Ain the United States are not cleared within the year committed.2 In cold case homicides, investigators often are forced to work with stale information and a lack of evidence.3 However, the View of Miner Spring Trail leading to the crime FBI’s National Center for the scene at Horseshoe Mesa, Grand Canyon, Arizona, hiked by Robert Spangler and his Analysis of Violent Crime third wife prior to her death in April 1993. (NCAVC) offers consultations on the investigation of

August 2005 / 1 cold case serial homicides, as suggestions; profiles of un- 15-year-old daughter. All three well as several other types of known offenders; interview, had suffered gunshot wounds cases. The NCAVC combines prosecutive, and trial strategies; from a .38-caliber handgun. investigative and operational major case management; search The daughter, found partially support functions, research, and warrant assistance; and expert clothed in her bed, had a bullet training to provide assistance testimony. With the NCAVC’s wound in her back. The son, without charge to federal, state, assistance, a 20-year-old cold also in bed, had been shot once local, and foreign law enforce- case homicide investigation in in his upper chest. The mother’s ment agencies investigating the Southwest was solved in body lay slumped over a type- unusual or repetitive violent 2000. writer in the basement with a crimes.4 bullet wound high on her fore- Furthermore, the NCAVC’s Suspicious Deaths head. A typewritten suicide note Behavioral Analysis Units On the morning of Decem- on the typewriter was signed provide behavioral-based ber 30, 1978, deputies from the with her initial. investigative support by apply- Arapahoe County, Colorado, As often is the case in intra- ing case experience, research, Sheriff’s Office responded to familial homicide investiga- and training to complex and the scene of a possible double tions, detectives interviewed the time-sensitive crimes typically homicide/suicide in a private surviving spouse as a suspect.5 involving acts or threats of residence in Littleton, Colorado. The husband, Robert Spangler, violence. This support includes A neighbor had discovered the age 45, told investigators that he crime, threat, and critical bodies of a 45-year-old woman, was not home during the crime. incident analysis; investigative her 17-year-old son, and her Spangler admitted marital problems with his wife and that he planned to leave her. He described leaving his house early that morning and finding sheriff’s deputies there when he returned. Spangler’s original story changed significantly in a subsequent interview. Two separate, private polygraph examiners found his answers inconclusive to questions about his role in the deaths. The .38- caliber weapon used in all three shootings belonged to Spangler, and evidence of gunshot residue Special Agent Johns is assigned Special Agent Downes serves was found on his right palm. On to the Crisis Management Unit in the NCAVC’s Behavioral in the FBI’s Criticial Incident Analysis Unit in the FBI’s Criticial January 3, 1979, the Arapahoe Response Group. Incident Response Group. County coroner closed the case as a double homicide/suicide. Ms. Bibles is the assistant U.S. attorney for the District of Arizona. The sheriff’s office was unable

2 / FBI Law Enforcement Bulletin to overcome the coroner’s findings, and they had exhausted all investigative leads; therefore, they were forced to close the case. Most of the evidence either was returned to Spangler or destroyed. Seven months later, Spangler married again. He and his second wife shared a common interest—hiking in Grand Canyon, Arizona. She eventu- ally wrote a book of her experi- ences hiking the Canyon.6 Subsequently, the couple began to have marital problems, and they divorced in 1988. In April 1993, Spangler and his third wife, age 58, backpacked in Grand Canyon, Arizona. This wife was an active aerobics instructor with five grown children and numer- ous grandchildren from a previous marriage. One morning in April 1993, Spangler appeared at a ranger station in the Grand Canyon and calmly told the ranger that his wife had fallen to her death. He explained that they had stopped to take a picture on the trail and, Sketch depicts path that Spangler’s third wife fell after he pushed her. when he looked back, his wife was gone. never was directly implicated in the Canyon with a variety of Rangers located the third this wife’s death because it was partners several times a year. wife’s body approximately 160 ruled an accident. He drew After the death of his third feet below the trail. The autopsy national attention with inter- wife, Spangler reestablished report concluded that she views on several television contact with his second wife, sustained massive injuries, shows.7 As a grieving husband, who moved back into his including abrasions, contusions, Spangler discussed his wife’s Colorado home and died of a lacerations, and multiple frac- accidental death and the dangers drug overdose in 1994. This tures of the neck, chest, and of hiking in the Grand Canyon. death was not investigated lower extremities. Spangler Spangler continued to backpack by law enforcement.

August 2005 / 3 The Investigation knowledge of the Grand Can- NCAVC Behavioral Assess- In January 1999, perceptive yon, joined the team. The ment Questionnaire when investigators from the U.S. AUSA united the cases under interviewing some of Spangler’s Department of Interior, National the umbrella of federal juris- associates. Early investigation Park Service, and counties of diction as an insurance fraud/ revealed that Spangler was an Coconino, Arizona, and Arapa- murder, and an FBI agent educated, intelligent, and hoe, Colorado, linked the cold in Flagstaff contacted the successful man. A charismatic case homicides in their respec- NCAVC. individual, he worked in careers tive jurisdictions. They met with First, NCAVC officials of human relations and public agents from the FBI’s Flagstaff, suggested that investigators speaking. In addition, Spangler Arizona, resident agency and complete a subject history on spent a significant amount of requested assistance. An assis- Spangler, stressing that inves- time living in different parts of tant U.S. attorney (AUSA) from tigators should familiarize Colorado and hiking the Grand the District of Arizona with themselves with all available Canyon. One lead set by the experience in capital murder information.8 Further, they FBI agent resulted in an inter- cases, who had a personal recommended using an view of a woman living in a small Colorado community who, subsequently, contacted authorities a few weeks after her interview. At that time, she gave them a copy of a letter she received from Spangler in which he advised her that he had terminal cancer. The investigative team, with concurrence from the NCAVC, immediately approached Spangler. A complete confession was critical for prosecution because of the lack of existing evidence. The investigative team traveled to Colorado to interview Spangler, and the AUSA met them there to provide on-site legal consultation. Confession In Colorado, local law During the course of investigation, Arapahoe County Sheriff’s Inves- enforcement and the local FBI tigator Paul Goodman (co-case agent) directed the construction of an office supported investigators. anotomically correct trajectory model depicting the bullet path and Because any prosecution de- muzzle distance from Spangler’s first wife’s fatal gunshot wound. pends on the admissibility of a confession, the investigative

4 / FBI Law Enforcement Bulletin team agreed to videotape the entire interview. Spangler’s terminal cancer created special issues for the AUSA regarding mental competence and the voluntariness of a statement.9 For this purpose, the NCAVC provided a telephonic interview strategy: a medical doctor retained by their unit analyzed Spangler’s medical records, confirmed his terminal condition, and gave advice regarding competency issues. Investigators approached Spangler at home and he agreed to an interview at the local sheriff’s office. The FBI agent and the Arapahoe County detective initiated the actual interview with the AUSA monitoring it from another room. The agent from the National Park Service observed the initial interview and partici- pated on the second day. The first day of interviewing lasted about 4 hours. Spangler believed investigators when they told him that FBI profilers Yellow rope depicts the path that Spangler’s third wife fell (160 feet) after he wanted to study him because pushed her from an inner wall of the Grand Canyon. he was a unique killer. Like some other serial murderers, too many, remember.”11 He left, communication link between his compulsion to kill even agreeing to contact investigators Spangler and the investigators, fascinated him.10 Investigators in the morning if he wanted to allowing the interview to confronted Spangler with the continue the interview. continue despite an overnight 1978 murders of his wife and Contrary to expectations of break.12 During the second children, the drug overdose of the investigation team, Spangler interview, Spangler told investi- his second wife, and the murder telephoned the FBI agent the gators how, while married to his of his third wife in the Grand next morning and made an first wife, he fell in love with Canyon. At the end of the inter- appointment to continue the another woman, then shot his view, Spangler told investiga- interview after breakfast. wife and two teenage children tors, “Well, you’re naming one Rapport was the key to be with her. Further, Spangler

August 2005 / 5 said he smothered his son with race or sexual orientation, enforcement officer. However, a pillow after shooting him correctly assessing that some the FBI’s National Center for because the bullet wound was serial killers target groups the Analysis of Violent Crime not lethal. He strongly denied they perceive as undesirable. offers assistance to local, state, involvement in the overdose Spangler’s motivation to kill federal, and foreign agencies death of his second wife and centered around the anticipated investigating unusual or refused to discuss the death in gain of eliminating his wives repetitive crimes. the Grand Canyon because he and children. During the inter- Departments should solicit feared a civil lawsuit from his view, he told investigators that the NCAVC’s assistance third wife’s grown children. killing them was easier than through NCAVC coordinators Investigators encouraged divorce. The results of this in- in their local FBI field offices. Spangler to talk about the vestigation included Spangler’s Services are provided on-site, Grand Canyon murder by telling confession to four homicides— telephonically, and at the him that killing several people three were 22-year-old cases. NCAVC’s offices located near at one time did not make him the FBI Academy. As demon- a serial killer. This approach strated in this investigation, worked on Spangler; after a per- behavioral analysis assistance iod of silence, he said, “You’ve from the NCAVC may help law got your serial.”13 Spangler then enforcement officers resolve described how he masterminded ...NCAVC’s Behavioral cold case homicides, bringing the Grand Canyon murder and Analysis Units closure to horrendous crimes. pushed his third wife over the “ provide edge while she faced him. behavioral-based Endnotes investigative Analysis 1 Quote by Robert Spangler, printed in support.... Robert Scott, Married to Murder (New The NCAVC officials York, NY: Kensington Publishing Corp., provided a behavioral analysis 2004), introduction. and interview strategy directly 2 U.S. Department of Justice, Federal applied by investigators in the Bureau of Investigation, Crime in the Spangler case. Further, they Spangler plead guilty in federal United States, 1999 (Washington, DC, 2000), 201; retrieved on April 6, 2004, accurately predicted several of district court in Arizona to the from http://www.fbi.gov/ucr/99cius.htm. Spangler’s behaviors. Spangler first-degree murder of his third 3 For the purpose of this article, the was concerned about his public ” authors define a cold case homicide as one wife, and he admitted killing reputation. He had been a radio his first wife and two children. where all investigative leads have been exhausted. talk show celebrity and was He was sentenced to life impris- 4 See the NCAVC’s Web site at http:// well respected in the commu- onment without parole, dying www.fbi.gov/hq/isd/cirg/ncavc.htm. nity. After confessing, Spangler of cancer while in federal 5 Charles Patrick Ewing, Fatal sent the FBI agent a letter, prison. Families: The Dynamics of Intrafamilial pleading with him to minimize Homicide (Thousand Oaks, CA: Sage the publicity about the case. In Conclusion Publications, 1997), 8. 6 Sharon Spangler, On Foot in the this letter, Spangler argued that Investigating cold case Grand Canyon: Hiking the Trails of the he was not like other serial homicides constitutes one of the South Rim, 2nd ed. (Boulder, CO: Pruett killers who target people for most frustrating duties of a law Publishing, 1989).

6 / FBI Law Enforcement Bulletin 7 Gary Scheige, American Journal’s is no Miranda violation. See, Mincey v. 11 Ibid., (Spangler). (The authors Death Valley (1993); and National Arizona, 437 U.S. 385 (1978). believe that Spangler referred to the drug Public Radio’s Morning Edition 10 Robert M. Spangler, interview by overdose death of his second wife when he (Washington, DC, 1993), transcript FBI Special Agent Leonard G. Johns; made this comment.) number 1230-1235. Arapahoe County Detective Paul E. 12 Supra note 8. 8 Robert K. Ressler, et al, “Interviewing Goodman, Jr.; and U.S. National Park 13 Supra note 10 (Spangler). Techniques for Homicide Investigations,” Service Special Agent Beverly L. Perry, FBI Law Enforcement Bulletin, August September 14-15, 2000, videotape. For The views and opinions expressed 1985, 27. additional information, see Robert K. by the authors do not necessarily 9 Confessions are presumed to be Ressler, et al, “The Split Reality of reflect those of the U.S.Department involuntary. The prosecution must prove Murder,” FBI Law Enforcement Bulletin, of Justice. that a confession is voluntary, even if there August 1985, 11.

Unusual Weapon

Ring Knife This metal blade is attached to a ring. It commonly is used to cut string on packages and hay bales. Law enforcement should remain cognizant of subjects possibly using such unusual dangerous weapons.

August 2005 / 7 Perspective

Excessive Force 101 evokes more emotion. Plaintiffs’ attorneys some- By Dan Montgomery, M.S. times use this expression as well, even though it rarely is applicable and too often paints a distorted, premature, and inaccurate picture of competent officers simply doing their jobs. As a law enforcement officer for 42 years, I know that most people do not understand the dynamics that come into play when officers use force, and they know very little, if anything, about the subject. All they have is what the entermedia reports, and, unfortunately, the entermedia’s knowledge of the dynamics often prove inadequate. Research has indicated that less than one-half of 1 percent of all police encounters (.0361 percent) involve the use of physical force and, in the majority of cases where officers use force, it is reasonable, lawful, and appropriate.2 In Graham v. Connor, the U.S. Supreme Court established one major test for determining whether an officer uses appropriate physical force—whether the force is reasonable in light of the facts and circumstances © Digital Stock present.3 The Court also ruled that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the eing assaulted or killed in the line of duty scene, rather than with the 20/20 vision of hind- Brepresents a reality faced by every law sight. Most important, the Court ruled that the enforcement officer who pins on a badge, and it measure of reasonableness must consider allow- happens every day. For the 10-year period from ances for the fact that officers often are forced to 1993 through 2002, 706 officers were feloniously make split-second decisions in tense, uncertain, slain in the line of duty in the United States and its and rapidly evolving circumstances and that such territories, including 70 who died on September factors are important in determining the amount of 11. Every 5 days, an officer is murdered. In 2002, force necessary in a particular situation. 58,066 were assaulted in the line of duty, an aver- In Smith v. Freland, the Court even went on to age of 160 every day.1 say, “We must avoid substituting our personal no- On a daily basis, officers also face the reality of tions of proper police procedure for the instanta- the occasional allegation of excessive force levied neous decision of the officer at the scene. We must while making arrests, detaining people, and neu- never allow the theoretical, sanitized world of our tralizing dangerous situations. The entertainment imagination to replace the dangerous and complex and media industries, which I refer to collectively world that policemen face every day. What consti- as the “entermedia,” often prefer to use the term tutes reasonable action may seem quite different to police brutality when describing allegations of ex- someone facing a possible assailant than to some- cessive force. After all, it is more entertaining and one analyzing the question at leisure.”4

8 / FBI Law Enforcement Bulletin Levels of Force away. At this point, the escorting officer now When law enforcement officers find it neces- is justified in increasing the level of force sary to use physical force, they typically employ or used to level three to get the subject to com- should employ what I like to call the use-of-force ply and to bring him under control. Using any spectrum. This concept is simple to understand not of the techniques or devices available in level only from a law enforcement training standpoint three is acceptable. but from a lay perspective as well. It involves five 4. The goal of level four force is self-defense graduated alternative levels of force used to com- and can include personal and impact weap- pel compliance. ons. Officers frequently are assaulted, so, to 1. The goal of level one force is to simply defend themselves and prevent or neutralize persuade someone to do something. The such attacks, they resort to personal weapons means to achieve this is verbal dialogue (e.g., hands, fists, and feet) to hit or kick. Or, (e.g., advice, warnings, requests, and orders). they can use impact weapons, such as batons, An officer who tells someone to stay in his flashlights, and kinetic energy projectiles vehicle, warns a person to take his hands out (e.g., shotguns that fire beanbag rounds or of his pockets, or orders an individual not to rubber bullets). In the level two example, if move is using level one force.5 Purely verbal the individual starts hitting and kicking the in nature, it does not involve any hands-on officer, the officer would be justified in using application. any of the tools listed in level four to defend 2. The goal of level two force is to achieve himself. compliance and involves actual physical contact, including physically escorting or carrying someone from point A to point B. Chief Montgomery heads the Westminster, An officer who takes someone by the arm, Colorado, Police escorting him to a different location, or Department. carries a demonstrator from one place to another is using level two force. For example, if an individual interferes with a crime scene and refuses an officer’s orders to stay back, the officer would be justified in escalating the force to level two and physically escorting the person away from the scene. 3. The goals of level three force are compliance and control using compression techniques or control devices. Compression techniques include wrist locks, arm bars, physical control holds, and the use of pressure point control tactics. Control devices consist of such tools as handcuffs, restraints, pepper spray, canines, Tasers, and stun guns. For example, an individual escorted at the level two stage suddenly starts resisting efforts to take him

August 2005 / 9 5. Last, the goal of level five force is to stop neutralize an out-of-control individual. People get someone. To accomplish this, officers can hurt in one-on-one confrontations, especially when employ deadly force, which includes the someone violently resists or fights. use of a firearm, another deadly weapon, or Most law enforcement officers are honest, ethi- a roadblock. All of these forms of force are cal, and hardworking individuals, and part of their potentially lethal. If the escorted individual in jobs involve the use of force—it is inevitable. the level two stage grabs the officer’s baton When officers use force or when bruises or other and starts striking him, or he moves toward injuries are visible on individuals in such circum- the officer preparing to strike him, in this stances, more often than not, officers have appro- case, the officer would be justified in escalat- priately employed the use-of-force spectrum. ing to level five and using deadly force to In these situations, concerned citizens should stop the imminent threat. Or, if the demon- ask, “Was the force used reasonable given the strator in level two manages to obtain a gun totality of the circumstances?” or knife and attacks or is about to attack the officer, the use of deadly force would be Unreasonable Force Issues justified. Statistically, approximately 10 percent of excessive force complaints by citizens are valid. The Decision-Making Process From my experience, generally four reasons exist Officers constructively should weigh the cir- why the use of force by officers may be unreason- cumstances of each case, respond accordingly, and able and, therefore, excessive and inappropriate. use a level of force objectively reasonable and 1. Inadequate training: Law enforcement offi- appropriate at the time. They may find themselves cers expose themselves to dangerous situa- suddenly thrust into a dangerous situation where a tions if they do not continually receive in- high level of force immediately service use-of-force training is justified, or, as a physical en- from their agencies or if they counter escalates over a period do not apply the use-of-force of time, they may have to elevate spectrum as a decision-making the levels of force used to main- tool. For the employing agency, “...generally four the civil risk is enormous as tain control of the situation. reasons exist why If officers lose these encoun- well. Continual use-of-force the use of force by training is absolutely essential. ters, offenders may hurt either officers may be them or someone else or take an unreasonable.... 2. Accidental application: officer’s firearm. If that happens, Occasionally, while involved in the result may be an armed a physical altercation, an officer offender, a wounded or dead accidentally may apply force officer, or an injured or dead citi- ” that, in most circumstances, zen. No fair fight exists when it would be considered unaccept- comes to a physical encounter between an officer able. For example, an officer who defends and someone who needs to be controlled and sub- himself with a baton in a fully involved level dued. The officer must prevail and use force rea- four force application appropriately attempts sonable and appropriate to compel compliance, to strike the suspect’s forearm. The suspect even if it takes two or more officers to subdue and suddenly moves, and the baton strikes his

10 / FBI Law Enforcement Bulletin neck, causing injury. Normally, a neck strike to be successful in their prosecution, they must with a baton would be inappropriate. But, in prove the case beyond a reasonable doubt. This this situation, because of the sudden move- can be a difficult standard to meet at times, and, ment, the neck strike was an accident, which consequently, prosecutors often decline to file occasionally can happen in highly charged criminal charges. Instead, they may defer to the situations. employing law enforcement agency for the impo- 3. Adrenalin overload: Sometimes, officers may sition of administrative sanctions (e.g., corrective “lose it,” and, because of the adrenalin over- actions, written reprimands, suspensions without load, the heat of the moment, the anxiety, and pay, demotions, and employment terminations). In the combat-like atmosphere, the officer may such circumstances, managers need to prove the apply too much force given the circum- administrative case by a preponderance of the evi- stances. This occasionally dence (at least a 51 percent happens in pursuit situa- or higher probability that the tions where, after a long, officer in question did violate dangerous chase, policy and procedure and use adrenalin overload takes force excessive in nature). over when the pursuit And, managers must be con- comes to a conclusion, vinced that if imposed, admin- and the suspect is ar- istrative sanctions will sur- rested. The civil risk here vive a personnel board hear- is enormous and, again, ing, civil service commission officers receive the hearing, or judicial review. In training to understand the cases where the officer’s emotional and physical property rights are involved dynamics that occur in (e.g. suspension without pay, these highly-charged a demotion, or an employment situations. termination), huge civil consequences can occur. Law en- 4. Retribution: Sometimes, © Digital Stock forcement officers have con- a situation occurs where stitutional rights, too, and an officer decides to “take care of business” managers simply cannot impose disciplinary sanc- and administer what I call “curbside justice.” tions capriciously. Although rare, these scenarios do happen. Understanding the standard of proof for a Such actions are not simple mistakes of the criminal prosecution and for the imposition of an mind but of the heart. Agency heads should administrative sanction is crucial. When prosecu- deal with these officers quickly and severely. tors and administrators decline to take action be- It is never the job of officers to punish people, cause of standard-of-proof problems, public out- and those who do so need to be criminally cries often happen, which can prove painful for prosecuted. everyone. When deciding whether or not to file criminal charges against officers for excessive force (usu- Conclusion ally in the form of assault or official misconduct Law enforcement officers face dangerous situ- charges), prosecutors have a proof standard, and, ations every day. Moreover, they often have only a

August 2005 / 11 limited amount of time in any encounter to decide from happening, handling adrenalin overload, and how much force to use. Most people do not renouncing retribution, agencies can help ensure thoroughly understand the legal and practical dy- that their officers are prepared for the dynamics of namics involved in use-of-force situations. Fur- any highly charged situation. ther, they may not know about the use-of-force spectrum that officers use in their decision-making Endnotes 1 U.S. Department of Justice, Federal Bureau of Investigation, process. An understanding of this concept may Law Enforcement Officers Killed and Assaulted, 2002 (Washing- assist citizens analyzing use-of-force situations ton, DC, 2003). and questioning whether the force that the officer 2 International Association of Chiefs of Police, Police Use of used was reasonable given the circumstances. Force in America, 2001. 3 490 U.S. 386 (1989). Unfortunately, sometimes officers use inap- 4 954 F.2d 343 (6th Cir. 1992). propriate and excessive force. But, by providing 5 For clarity purposes, the author employs masculine pronouns adequate training, helping circumvent accidents throughout the article.

Wanted: Book Reviews

he Bulletin invites criminal justice professionals to submit reviews of recently T published nonfiction books they have read on topics relative to their field of expertise for possible inclusion in its Book Review department. The magazine pub- lishes only positive reviews of between 350 and 500 words or 1½ to 2 pages double- spaced. As with article submissions, the Bulletin staff will edit book reviews for style, length, clarity, and format. Book reviewers should include two or three compelling points that the author makes, along with the complete title of the work; the names of the authors or editors; and the publishing company, city and state, and publication date. As a guide, the staff suggests that reviewers examine book reviews in past issues of the Bulletin to acquaint themselves with the magazine’s requirements. Reviewers should submit their book reviews typed and double-spaced on 8½- by 11-inch white paper with all pages numbered. Reviewers should include an electronic version of the review saved on computer disk. Send book reviews to:

Editor, FBI Law Enforcement Bulletin FBI Academy Madison Building, Room 201 Quantico, VA 22135 telephone: 703-632-1952 e-mail: [email protected]

12 / FBI Law Enforcement Bulletin Reducing a Guilty Suspect’s Resistance to Confessing Applying Criminological Theory to Interrogation Theme Development By BRIAN PARSI BOETIG, M.S.

nvestigators can increase exploiting centuries of social criminal investigation. Obtain- their success in the interro- science research. Possessing a ing a confession during an I gation room by applying basic understanding of the interrogation increases the criminological theories of theories and how to practically likelihood of a conviction in deviance, which attempt to apply them during an interroga- court1 and, in many cases, is explain the roots of criminal tion can improve investigators’ the only means to successfully behavior. The theories attribute abilities to facilitate a guilty resolving an investigation in deviant behavior to a multitude suspect’s transition from denial the absence of other evidence.2 of spiritual, biological, and to admission. Investigators initially must social factors. Investigators control and direct the conversa- conducting interrogations can THEME-BASED tion during interrogations. In apply these principles in an INTERROGATION fact, interrogations are less of a effort to reduce a suspect’s An interrogation is a critical conversation than a monologue resistance to being truthful by component in nearly every by investigators in which they

August 2005 / 13 at times, and the investigator should review current literature The themes concerning the psychological “ presented by effects of confessions and false investigators to confessions. suspects are as The themes presented by varied as the crimes investigators to suspects are as and the people varied as the crimes and the who commit them. people who commit them. Investigators develop these themes based on the theories and opinions they form as to Special Agent Boetig is an instructor in the Law Enforcement Communication Unit at the FBI Academy. why the suspect committed a ” crime gained through interviews with him, additional evidence collected throughout the case, provide suspects with accept- incident.5 Projections of blame experience, and training— able reasons to confess. These distance suspects from appear- formulating them without ever permit the suspect to maintain ing solely responsible for the scrutinizing scholarly theories some dignity in light of his crime by transferring partial of deviance. However, most illicit behavior; they clear blame to someone or something themes mirror a criminological the suspect’s conscience from else, such as victims, peers, theory or a combination of experiencing overwhelming society, or intoxicants. Finally, several. By studying the exist- guilt or shame, except in those investigators can try to reduce, ing theories perfected by soci- cases where little, if any, exist.3 or minimize, the heinous nature ologists over the past couple of The interrogator acts more as an of the crime so it produces less centuries, inexperienced inves- “understanding mediator, rather guilt or shame for the suspect. tigators can pursue avenues than an adversary.”4 The themes do not provide legal for theme development while The investigator presents excuses for the crimes but, seasoned investigators can the acceptable reasons to con- rather, moral and ethical jus- refine their existing interroga- fess, usually in one of three tifications. Suspects will reduce tion skills. Although they must nonexclusive and nonexhaus- their initial resistance to consider certain factors when tive categories: rationalizations, concealing the truth if they determining which theme to projections of blame, and mini- accept the justifications. Prior use, investigators will find that mizations. Collectively, these to employing the interrogation the one which the suspect is categories often are referred tactic using the theme-driven most receptive to proves suc- to as themes, approaches, or approach, investigators should cessful. Signs of receptivity arguments. Rationalizations familiarize themselves with vary immensely but include offer suspects the opportunity departmental policy and laws both nonverbal behaviors and to make their crimes appear applicable to the use of deceit gestures, such as becoming socially acceptable, or within in their respective jurisdictions. more attentive or nodding in reason, based on the circum- Also, theme-driven interroga- agreement to the interviewer’s stances at the time of the tions can be highly persuasive theme, and verbal cues,

14 / FBI Law Enforcement Bulletin including agreeing with the are enacted to define acceptable occurs when gas prices rise. interviewer and contributing behavior. The laws, serving as Thousands of other people to and validating the theme. a social contract between the make this decision every day Themes that work with some government and its citizens, because of the high cost of suspects will not always do so provide reasonable punishments gas and the low likelihood of with others. Having a prolific for breaches of the social con- capture and prosecution. In this interrogation theme repertoire tract that, in effect, will deter theme scenario, investigators will assist investigators in be- deviant behavior. When sanc- present the classical perspective coming successful more often. tions are inadequate, suspects as simple economics. can rationalize criminal activity Projections of blame should CRIMINOLOGICAL because the benefits simply focus on the criminal justice THEORIES outweigh the punishment if system not taking the suspect’s Criminological theories, the captured.7 crimes seriously enough. In this product of centuries of thought instance, the investigator should that often fuse formal research advance the projection with the with common beliefs, offer belief that the suspect would not scientific explanations for the even have considered stealing existence of deviant behavior. the gas if a harsher punishment Some theories conceptualize In the interrogation existed. certain aspects of deviance room, investigators Further, minimizations while selectively ignoring quite easily can address nearly the same issue 6 “exploit the social others. For this reason, the as projections. In this case, the study of criminological theory condition theories. investigator can minimize the will present theories with importance for the police and overlapping and even contra- courts to apprehend and pros- dicting perspectives. This does ecute violent offenses, rather not affect investigators using than insignificant property them to develop interrogation Developing themes based crimes. themes because any theory that on the classical perspective presents the illicit behavior as focus on the suspect’s perceived Rational Choice Theory reasonably acceptable to the value of the social contract.” People choose to do what suspect constitutes a useful tool. Investigators may rationalize is in their best self-interest— a crime merely by explaining the foundation of the rational Classical Perspective to the suspect that the deviant choice perspective. Although The classical perspective act was logical behavior that similar to the classical perspec- alleges that criminal behavior anyone in his position would tive, three distinct components involves a rational, calculated have done because the reward comprise this theory. First, the choice to achieve the maximum outweighed the possibility of criminal must rationalize that amount of pleasure with the capture and prosecution. For the illicit behavior is in his best minimum amount of pain. example, investigators can interest. Although more accept- Everyone seeks these hedonistic rationalize driving away without able or legal means exist to desires, so, to prevent total paying for gas by telling the achieve the same goal, such chaos within a society, laws suspect that this commonly as working hard, the criminal

August 2005 / 15 concludes the deviant method as on anything else is appropriate most of the early biological the most appropriate. In further- to reduce the suspect’s feelings perspective’s validity and ance of obtaining the goal, the of guilt. The investigator might methodology, this angle still can offender must determine the blame the boyfriend for not prove a useful basis for theme specific focus (or modus oper- giving the offender a chance to development. Around the turn andi) of the illicit behavior. reconcile the relationship or for of the 20th century, Cesare Criminals have to choose treating her poorly during the Lombroso theorized that certain whether to commit a residential separation. Finally, the inves- people were born criminals and burglary to satisfy financial tigator can minimize the possessed such distinguishing needs or an act of vandalism woman’s shame by acknowl- characteristics as enormous to revenge a scorned lover. edging her righteousness in jaws, prominent canines, and Their reasoning, motivations, deciding to stop committing hooked noses, along with other and methods differ based on the criminal acts before the situa- abnormal intercranial features. self-interest fulfilled. If some- tion became out of control. These characteristics were one wanted to satisfy a financial thought prevalent in criminals. need, committing an act of van- Shortly after Lombroso, Earnest dalism or sexual assault would Hooten concluded that crimi- not satisfy self-interest. Finally, nals were “organically inferior” once an individual selects to and these weaknesses caused attain his goal through deviant an inability to interact with means and chooses the specific surrounding environment crime, he then needs to analyze standards; therefore, they were the criminal involvement, which forced to submit to a life of includes deciding to commit deviant behavior.9 Even later, criminal acts and either remain- some researchers thought that ing involved or stopping the deviance was hereditary or criminal behavior, all rational based on the possession of choices he has to make. additional X or Y chromo- As the title of the theory The investigator should suggest somes.10 Contemporary devel- suggests, the most prominent that her choice to refrain from opments in the biological interrogation tactic for this further acts of vandalism or explanation explore the fields theory is rationalization. A even violence makes the of genetics, biochemistry, endo- woman can rationalize vandal- incident rather mundane and crinology, neuroscience, immu- izing her ex-boyfriend’s car as insignificant. nology, and psychophysiology acceptable behavior based on for understanding deviant the circumstances at the time, Biological and Psychological behavior.11 such as his failure to return Explanations A suspect might feel com- phone calls or too quickly The biological and psycho- forted by an explanation of his becoming romantically involved logical explanations surmise genetic predispositions to with another woman. Because that deviance is associated with deviance because of a preexist- the focus of the rational choice a physical or mental abnor- ing condition, reducing his theory is centered on self- mality or sickness.8 Despite feelings of guilt because he interest, projecting the blame scientific evidence countering might believe that he had little

16 / FBI Law Enforcement Bulletin control over his inferior biologi- that which society can return the American dream as so cal makeup. To that end, crimi- to them, resulting in a state of embedded in the culture that nals can blame uncontrollable normlessness. The Great De- nobody could be faulted for biological factors or corrupted pression, an example of a soci- taking whatever means neces- family bloodlines, rather than ety in transition, had abundant sary. They easily could project rationalized, premeditated chaos and crime because of the the blame on the high expecta- thoughts or other self-fulfilling disruption in the normalcy of tions and demands placed on reasons. To make the crime society. the suspect by his family despite more acceptable, the investiga- Even while not in transition, an assiduous work ethic. Fur- tor can minimize the suspect’s each society has goals that ther, they could hold the com- deviant actions by explaining citizens desire to achieve. pany responsible for underpay- how he has seemingly over- Power, wealth, and prestige ing the suspect. Regarding come overwhelming natural based on hard work all represent minimizations, the investigators circumstances and, despite hav- part of the American dream; could suggest that engaging in ing the uncontrollable propen- property crimes to obtain the sity to commit more crimes, he American dream offers a much has show considerable restraint. more acceptable route than committing violent crimes. Social Condition Two distinct routes Explanations of demonization can Social Process Theories Social condition explana- occur—temptation Interactions among families, tions differ from the biological “and possession. peer groups, and other social and psychological ones by institutions drive the social correlating individual criminal process theories. Perhaps, the behavior to social conditions, learning theories prove the most including poverty, disparate successful concepts for project- educational opportunities, un- however, some people never ing blame because they examine employment, and class struc- attain these goals no matter how the interactions among people ture.12 Further, crime exists as a hard they work. And, even that occur in everyday life. result of imperfections in social worse, society rewards success-” Despite this common thread, conditions, and, because many ful achievement of the goals sociologists have explored the of these afflictions strike lower- despite the manner in which interactions from three different income areas, it tends to fester people obtain them. Therefore, perspectives: social learning, itself in these environments. if deprived of these goals, it can social control, and labeling. The anomie perspective lead to a disregard of the rules Social learning theories explains that the presence of to increase a person’s own suggest that people are inher- deviance is the result of weak- success. ently good and learn all of their ening social structures during In the interrogation room, values and behaviors, either the transitions of societies; the investigators quite easily can positive or negative, depending natural, cohesive forces that exploit the social condition on their social interactions that maintain order are destroyed as theories. To rationalize a corpo- not only teach the behaviors societies change. People’s aspi- rate embezzlement, they can but also reinforce them.13 For rations and desires outweigh present evidence of obtaining example, parents often guide

August 2005 / 17 children to stay away from the time available for illegal activi- “moral claims of the conven- “wrong crowd,” evidence of the ties, possibly the foundation for tional world.”17 Investigators almost universal acceptance of the phrase “idle hands are the should develop interrogation this theory’s perspective. devil’s workshop.”15 themes based on the suspect’s Social control theorists Finally, the labeling theory, own techniques used to neutral- believe that all people have an also called the societal reaction ize his deviant behavior. Of- innate desire to break the law perspective, suggests that the fenders learn to deny injuring but social forces overcome criminal justice system itself anyone, which permits them to them. Sociologist Travis produces criminal behavior. admit their choice to engage in Hirschi14 suggested that three Once “labeled” a criminal, deviant behavior yet minimize social forces prevent people whether formally or informally, its magnitude. Criminals will from committing crimes. First, a person begins to act like one. project the blame on victims by their attachment to others The focus of this theory is not either claiming they deserved causes them to respect their solely on the criminal but, the act or that they actually opinions (e.g., not doing some- rather, the behavior and were not victims at all (e.g., the thing deviant in fear of disap- attitudes of the police, law subject of a tax evasion case pointing a spouse, parents, or makers, and other societal believing that the government a boss). Second, a commitment institutions. had been “stealing from him for to order keeps people on a Unique to the learning all these years”). Appealing to righteous path. If an individual perspectives within the milieu higher authorities are attempts plans on becoming a police offi- of structured interrogations, by the suspect to rationalize the cer in the future, his avoidance rationalizations for the crimes behavior as done on behalf of of deviant behavior becomes a are part of the criminal’s learn- others, rather than narcissisti- driving force. Third, engaging ing process.16 Rationalizations cally motivated. The murder in legal activities reduces the protect a suspect from the of a sister’s spouse would be justified as “done for the family,” rather than based on an intense dislike for the person or other selfish motivations. In these instances, offenders offer investigators learning theories for projections of blame on the people that taught them to be criminals, such as siblings, peers, parents, and fellow inmates.18 Demonic Perspective The demonic perspective posits that demons or Satan cause people to commit deviant acts, and it employs the notion of supernatural forces of good

18 / FBI Law Enforcement Bulletin and evil battling against one that his actions were minor perspective to understand be- another. These explanations offenses in comparison with the cause suspects can allude to it manifested out of early society’s egregious acts committed by during interviews. “need to explain away aberrant others directed at defying God behavior.”19 Two distinct routes (e.g., explaining that the sus- CONCLUSION of demonization can occur— pect’s theft from his employer Investigators can use crimi- temptation and possession. pales in comparison with other nological theories of deviance Temptation involves the cases the investigator worked during the structured interroga- attraction into criminal behavior where subjects stole from tion process to develop themes through the seductive entice- churches and schools). to present to the suspect that ments of evil. Although the will reduce moral and ethical afflicted person still has the consequences of admitting ability to choose between good involvement in a particular and evil, the temptations by the criminal behavior. The author evil forces prove too powerful has not presented every theory to suppress. Despite the fact that …any theory that of deviance, but merely pro- the demonic perspective repre- presents the illicit vided a snapshot of a few sents the oldest known explana- behavior as reasonably theories, many of which investi- “acceptable to the tion for deviant behavior, it still gators subscribe to in their own can have a powerful impact in suspect constitutes personal beliefs despite never theme development. Investiga- a useful tool. having specifically attributed tors can apply the demonic them to an established crimino- temptation perspective by logical theory. drawing a parallel between the The examples of themes biblically based story of Adam derived from these theories only and Eve’s temptation by the evil Demonic possession, the offer a starting point for inves- serpent and the suspect’s crime. belief that evil has pervaded the tigators cultivating themes. For example, the investigator body, offers the investigator” Learning and understanding could suggest to a theft suspect opportunities to develop themes the theories generated through that his actions were consistent of complicity between the evil sociological research will with the natural tendencies of forces and the suspect; how- enhance the skills of all investi- human beings. The temptations ever, demonic possession may gators in developing and pre- of evil, no matter how big or create grounds for an insanity senting convincing themes to small, often are too great to defense for the suspect. The subjects in the interrogation resist. This approach attempts offender’s ability to distinguish room. Furthermore, any tactic to rationalize the behavior as between right and wrong is a or approach used by an investi- natural and commonplace. The critical element during legal gator must pass constitutional investigator can project blame proceedings and, therefore, muster, and confessions derived on the existence of original sin investigators should discuss the from the approach must be or the actions of Adam and Eve demonic possession perspective voluntary and not the product for initiating the deviant act. To with prosecutors prior to using of government overreaching minimize the crime, the investi- it in the interrogation room. to have value in the criminal gator can convince the suspect It proves an important prosecution.

August 2005 / 19 Endnotes 1 R.A. Leo, “Inside the Interrogation Wanted: Room,” Journal of Criminal Law and Notable Speeches Criminology 86, no. 2 (1996): 266-304. 2 F.E. Inbau, “Police Interrogation: A Practical Necessity,” Journal of Criminal Law and Criminology 89, no. 4 (1999): he FBI Law Enforcement 1403-1412. T 3 Bulletin seeks transcripts For illustrative purposes and to main- of presentations made by crim- tain clarity, the author employs masculine pronouns for subjects in most instances. inal justice professionals for 4 D.E. Zulawski and D.E. Wicklander, its Notable Speech depart- Practical Aspects of Interview and ment. Anyone who has Interrogation, 2nd ed. (New York, NY: delivered a speech recently CRC Press, 2002). and would like to share the 5 Ibid. information with a wider 6 S. Pfohl, Images of Deviance and audience may submit a trans- Social Control: A Sociological History cript of the presentation to the (New York, NY: McGraw-Hill, 1994). Bulletin for consideration. 7 H.W. Mannle and J.D. Hirschel, Fundamentals of Criminology, 2nd ed. As with article submis- (Englewood Cliffs, NJ: Prentice Hall, sions, the Bulletin staff will 1998). edit the speech for length and 8 Ibid. clarity, but, realizing that the 9 J.E. Jacoby, Classics of Criminology, information was presented 2nd ed. (Prospect Heights, IL: Waveland orally, maintain as much of Press, 1994). the original flavor as possible. 10 J. Samaha, Criminal Justice, 6th ed. Presenters should submit their (Belmont, CA: Wadsworth, 2003). transcripts typed and double- 11 D. H. Fishbein, “Biological Per- spectives in Criminology,” retrieved on spaced on 8 ½- by 11-inch January 16, 2005, from http:// white paper with all pages www.criminology.fsu.edu/crimtheory/ numbered. When possible, an fishbein.ht. electronic version of the tran- 12 Supra note 10. script saved on computer disk 13 R.L. Akers, Deviant Behavior: should accompany the docu- A Social Learning Approach, 3rd ed. ment. Send the material to: (Belmont, CA: Wadsworth, 1985). 14 T. Hirschi, Causes of Delinquency Editor, FBI Law (Berkley, CA: University of California Press, 1969). Enforcement Bulletin 15 Supra note 10. FBI Academy 16 M.S. Gresham and D. Matza, Madison Building, “Techniques of Neutralization: A Theory Room 201 of Delinquency,” American Sociological Quantico, VA 22135 Review 22, (1957): 664-670. telephone: 703-632-1952, 17 Supra note 6. e-mail: [email protected] 18 Supra note 16. 19 T. Szasz, Insanity: The Idea and Its Consequences (New York, NY: Wiley, 1987).

20 / FBI Law Enforcement Bulletin ViCAP Alert

Truck Driver Serial Killings

The Gray County Sheriff’s Office welcomes any information regarding the identity of the truck driver shown in this video clip. Vickie Helen Anderson

n the beginning of 2004, law enforcement remained unidentified until late 2004, was last I officers (LEOs) across the United States iden- seen at the Flying J truck stop in Sayre, Oklahoma. tified a pattern of homicides involving the killing The victim is believed to have been carrying a of prostitutes who worked in and around truck black and tan backpack and an Igloo brand soft- stops. These killings have taken place over a num- sided cooler bag, bright blue in color. She was last ber of years and initially involved the states of seen wearing a plaid shirt, pants, and either a green Oklahoma, Texas, Arkansas, Mississippi, Penn- sweater or sweatshirt. sylvania, and Indiana. The Flying J’s video shows the victim talking Over the last year, the FBI, local, and state with an unidentified truck driver between 2 and law enforcement agencies have met for joint case 2:30 a.m. The victim’s nude body was recovered consultations, resulting in the identification of later that day around 8:15 a.m, 80 miles from the several potential suspects. Time lines have been Flying J truck stop. compiled on 10 suspects so far, with several more in progress. These time lines, which cover Alert to Law Enforcement nearly the entire United States, are available to Law enforcement agencies should bring this LEOs who have homicide victims meeting the information to the attention of all crime analysis following description: prostitutes working from units, officers investigating crimes against per- truck stops, hitchhikers, transients, unidentified sons, and missing persons units. Any agency with dead bodies, and any other victims at risk information on the Vickie Helen Anderson case where the suspect is likely to be a long-haul truck may contact the Gray County Sheriff’s Office at driver. 806-669-8022 or Sergeant Bart Bivens of the Texas Rangers at 806-665-7168. Any agency with Victim Vickie Helen Anderson victim or suspect information for the truck driver On October 16, 2003, the body of Vickie Helen serial killings ongoing investigation may contact Anderson was recovered along the shoulder of the Crime Analyst Jayne M. Stairs of the Violent westbound entrance ramp of Interstate 40 in Gray Criminal Apprehension Program (ViCAP) at 703- County, Texas (near McLean). The victim, who 632-4168 or [email protected].

August 2005 / 21 Legal Digest The Motor Vehicle Exception By EDWARD HENDRIE, J.D.

here is a presumption that a search conducted under the authority of a T 1 search warrant is reasonable. Conversely, a search conducted without a search warrant is presumed unreasonable.2 The presumption of unreasonableness can be rebutted through an applicable exception to the search warrant requirement. One of those exceptions is known as the motor vehicle exception. The U.S. Supreme © Scott Whittemore Court has ruled that if an officer has probable cause to believe and the fact that the mobility of items in the trunk, pursuant to that evidence or contraband is vehicles present an inherent standardized agency regula- located in a motor vehicle, he exigency.4 tions;7 or 4) search a motor may search the area of the In addition to the motor ve- vehicle upon the consent of the vehicle he reasonably believes hicle exception, there are other person who has the actual or contains that evidence without exceptions to the search warrant apparent authority and control a search warrant to the same requirement that allow an offi- over that vehicle.8 While these degree as if he had a warrant.3 cer to search all or part of a listed exceptions can be applied The scope of the search is motor vehicle. Those exceptions to motor vehicles, they are not limited only by what the officer allow officers to 1) search the limited in their application to has probable cause to search for passenger compartment (but not motor vehicles, as is the motor and may encompass the entire the trunk) of a suspect’s vehicle vehicle exception. vehicle, including the trunk. incident to his arrest;5 2) frisk The motor vehicle exception is the passenger compartment (but Probable Cause based upon the reduced expec- not the trunk) of an automobile To search under the motor tation of privacy that citizens for weapons upon reasonable vehicle exception, an officer have in their motor vehicles suspicion that a weapon may must have probable cause. The because of the pervasive regula- be there;6 3) inventory an im- Supreme Court has stated that tion to which they are subjected pounded vehicle, including “probable cause is a fluid

22 / FBI Law Enforcement Bulletin concept—turning on the assess- warrantless search of the ve- being transported in the ment of probabilities in particu- hicle and found illegal liquor automobile which they lar factual contexts—not read- hidden beneath the upholstery stopped and searched.13 ily, or even usefully, reduced to of the seats. The U.S. Supreme In Chambers v. Maroney,14 9 a neat set of legal rules.” Prob- Court approved of the warrant- a service station was robbed by able cause is not a “one size fits less motor vehicle search in two armed men. At about the all” standard. In fact, probable Carroll because the agents had time of the robbery, two teenag- cause is a range that occupies a probable cause. ers noticed a blue station wagon 10 zone that is assessed under the One of the often-overlooked circling the block in the vicinity 11 totality of the circumstances. but rather significant findings of the gas station and later The seminal motor vehicle by the U.S. Supreme Court in speed away with four people exception case is Carroll v. Carroll was that the probable inside, one of whom was wear- 12 United States. The Carroll cause in that case was clear. The ing a green sweater. The station decision illustrates just how low U.S. Supreme Court stated: attendant recounted that one of the probable cause standard is [I]t is clear the officers here the robbers was wearing a green when conducting a warrantless had justification for the sweater and the other was search under the motor vehicle search and seizure. This wearing a trench coat. A de- exception. In Carroll, federal is to say that the facts and scription of the car and robbers prohibition agents acting under- circumstances within their was broadcast over the police cover had negotiated for the knowledge and of which radio. Within an hour, a light purchase of illegal whiskey in they had reasonably trust- blue compact station wagon Grand Rapids from the two worthy information were carrying four men was stopped defendants, Kiro and Carroll. sufficient in themselves to by the police approximately 2 The sale was never consum- warrant a man of reasonable miles from the gas station. One mated. Approximately 1 week caution in the belief that of the passengers was wearing later, the agents saw Kiro and intoxicating liquor was a green sweater, and there was Carroll traveling toward Detroit in the same car they used to drive to the undercover negotia- tions. More than 2 months later, the agents once again saw the defendants driving in the same automobile from the Detroit “ To search under area toward Grand Rapids. The the motor vehicle agents knew that at the time, the exception, Detroit area was an active an officer must center for bringing illegal liquor have probable into the United States. Believ- cause. ing that Kiro and Carroll were smuggling a load of illegal liquor from Detroit to Grand Rapids, the agents stopped the Special Agent Hendrie, DEA Legal Section, is a vehicle. The agents conducted a legal” instructor at the DEA Training Academy.

August 2005 / 23 a trench coat in the car. The In the more usual case, an presence of the drugs in the pas- occupants of the car were officer would be in a situation senger compartment. The same arrested. The money, guns, and where he has found contraband inference can be drawn from other incriminating evidence or other evidence of a crime in finding a gun in the passenger from the robbery were found the passenger compartment of a compartment of the vehicle. A inside the car during a later vehicle. In such a case, it would gun found in the passenger warrantless vehicle search be reasonable for the officer to compartment of a motor vehicle conducted at the station. The believe that other contraband or would support an inference that U.S. Supreme Court found that evidence could also be in the other weapons, ammunition, or there was probable cause to trunk of the vehicle.16 For contraband could be in the trunk arrest the suspects and probable example, in Commonwealth v. of that vehicle.18 cause to search the vehicle. Moses,17 the Supreme Court of The Court approved of the later Massachusetts ruled that drugs Personal-Use vehicle search under the motor and a gun found in the passen- Amount of Drugs vehicle exception. ger compartment of a vehicle It should be noted that some courts are of the view that the Scope of the Search presence of a personal-use The scope of a search under amount of drugs in the passen- the motor vehicle exception ger compartment of a motor is limited to the areas in the The Court approved vehicle would only give the vehicle where the evidence or of the later vehicle officer probable cause to search contraband could reasonably be search under the passenger compartment but located. For instance, suppose “the motor vehicle not the trunk. For example, in an officer has probable cause to Wimberly v. Superior Court believe that a suspect is carrying exception. of San Bernardino County19 a suitcase full of illegal drugs, officers stopped a motorist for and the officer sees the suspect driving erratically. The officers hail a cab and put the suitcase approached the stopped vehicle in the trunk of the cab. If the during a frisk for weapons gave and saw a smoking pipe next suspect is detained by the an officer probable cause to to12 round seeds on the floor officer before he gets in the cab, believe that more drugs or of the vehicle. The officers the officer would have probable weapons could be in the trunk.” smelled the odor of burnt cause to believe that the drugs Ordinarily, an officer would not marijuana emanating from are in the suitcase put in the be permitted to search the trunk inside the car, and upon exam- trunk but not anywhere else in while frisking the automobile ining the pipe, they found burnt the cab. Under the motor ve- for weapons. However, once the marijuana residue in the pipe hicle exception, therefore, the drugs were found in the passen- bowl. The officers searched the officer would only have author- ger compartment of the vehicle interior of the car and found a ity to search the trunk because during the initial frisk, the plastic bag containing a small he would lack probable cause search of the trunk was permit- quantity of marijuana in the to believe that any contraband ted under the motor vehicle pocket of a coat. The officers or evidence would be found exception based upon the prob- used the car keys to open the elsewhere in the taxicab.15 able cause arising from the trunk of the car where they

24 / FBI Law Enforcement Bulletin found several pounds of mari- motorist for failing to display information that he was a juana and hashish in a suitcase a front license on his vehicle. marijuana user and that there in the trunk. The California When the defendant rolled was not sufficient evidence to Supreme Court ruled that the down the window of the ve- establish probable cause that officers had probable cause to hicle, the officer noticed a there would be more drugs in search the passenger compart- strong odor of burnt marijuana. the trunk of the vehicle. The ment of the vehicle upon ob- The driver produced a tempo- U.S. Court of Appeals for the serving the marijuana seeds in rary registration but could not District of Columbia Circuit close proximity to the smoking produce a driver’s license. The disagreed with the defendant’s pipe on the floor of the vehicle. officer saw torn pieces of cigar argument and ruled that there The court, however, also ruled tobacco in the defendant’s lap was probable cause to believe that the erratic driving, the and on the floor at his feet. The that the defendant would have observation of the marijuana officer knew that marijuana additional drugs in his trunk. seeds adjacent to the smoking users often hollow out cigars pipe, the odor of burnt mari- Odor of Marijuana © Mark C. Ide juana, the burnt residue in the In Turner, the officer no- pipe, and the small quantity of ticed the smell of burnt mari- marijuana secreted in the jacket juana, but there was also other indicated only that the defen- evidence of marijuana use by dants were casual users of the driver that gave the officer marijuana. The court deter- probable cause to search the mined that it was not reason- trunk. The smell of burnt able for the officer to infer that marijuana emanating from the casual drug users would have passenger compartment of a additional contraband hidden vehicle in and of itself is usually in the trunk. Because the court sufficient to establish probable found that the officers did not cause to search the passenger have probable cause to search compartment for the source of the trunk, the court suppressed the odor.22 However, the odor of the evidence found in the trunk. and use them as a receptacle for burnt marijuana alone is gener- The Wimberly decision smoking marijuana. The officer ally not viewed by the courts as represents a minority of courts. also observed on the floor sufficient to establish probable In most courts, if there is physi- directly behind the driver’s seat cause to search the trunk of a cal evidence of drugs found in a clear plastic bag of green vehicle.23 the passenger compartment of weed-like material, which he For example, in United the vehicle, even if it is only a believed to be marijuana. The States v. Nielsen,24 an officer personal-use amount, that will officer asked for the keys to the pulled over the defendant for be sufficient to establish prob- car, which he used to open the speeding and subsequently able cause that more drugs trunk. The officer searched the smelled the odor of burnt could be found in the trunk of trunk where he found $825 in marijuana coming from the that vehicle.20 For example, in small bills and a 62-gram chunk open window of the defendant’s United States v. Turner,21 a U.S. of cocaine base. The defendant vehicle. The officer obtained Park Police officer stopped a argued that the officer only had consent to search the passenger

August 2005 / 25 compartment of the vehicle but would not require corroboration opening the trunk they found found nothing there that could to establish probable cause to an unspecified number of have been the source of the search the trunk of a vehicle.26 marijuana plants. marijuana odor. A criminal The corroboration of the The driver was found guilty record check revealed that the marijuana odor does not have of drug trafficking under state driver had been arrested for a to be in the form of physical law, and he appealed his con- misdemeanor marijuana offense evidence. In State v. Ireland,27 viction. The defendant argued approximately 15 years earlier. officers pulled over the defen- that because the detection of the The officer then removed the dant because he was driving marijuana odor in the passenger keys from the ignition and with his headlights off. The compartment was not supported opened the trunk of the vehicle. officers ultimately determined by any corroborating evidence Inside the trunk, the officer that the driver was driving on a of the presence of marijuana, found approximately 2 kilo- suspended license. The officers there was not probable cause to grams of cocaine. The U.S. arrested the driver and searched search the trunk of the vehicle. Court of Appeals for the Tenth the vehicle incident to his arrest. The Supreme Court of Maine Circuit ruled that the odor of the ruled that the odor of marijuana marijuana alone was not suffi- was corroborated by the furtive cient to establish probable cause behavior of the owner of the to search the trunk of the motor vehicle in denying that she had vehicle. a key to the trunk when, in fact, The Nielsen court was The corroboration there was a key readily available concerned with the credibility of the marijuana in the passenger compartment of the uncorroborated detection odor does not of the vehicle. Her false state- “ have to be by an officer of the mere odor ment suggested that more of burnt marijuana in a motor in the form of marijuana would be found in vehicle. The Nielsen court physical evidence. the trunk of the vehicle. stated, and most courts agree, The above cases deal with that if there is evidence that the issue of the odor of burnt corroborates the odor of burnt marijuana. When, however, the marijuana, the corroborated odor detected by the officer is odor would be sufficient to As they searched the vehicle, the odor of fresh, unburned establish probable cause to they detected a burnt marijuana marijuana, courts have not search the vehicle’s trunk. The smell under the driver’s seat. required additional evidence to corroboration could be as sim- There was a passenger in ”the car corroborate the presence of the ple as finding a marijuana cig- who indicated that she owned marijuana before an officer may arette in the car or in the posses- the car. One of the officers search the trunk of the vehicle.28 sion of the driver.25 The Nielsen asked the owner if there was court distinguished between the anything in the trunk. She Motor Vehicle detection of the smell of mari- responded that there was noth- The term motor vehicle for juana by an officer and the ing in the trunk and that she had purposes of the motor vehicle detection of drugs by a trained no key available to open the exception is a term of art, which drug-sniffing dog. The court trunk. The officers in due time has not been limited to ordinary stated that a drug dog with a found the trunk key inside the automobiles. In California v. good track record for reliability passenger compartment. Upon Carney,29 the U.S. Supreme

26 / FBI Law Enforcement Bulletin Court applied the motor vehicle The defendant pleaded nolo public highways, motor homes exception to a motor home. In contendere to the drug charges, are subject to pervasive regula- Carney, a DEA agent received and he was placed on probation. tion. The Court stated that uncorroborated information that He appealed the order placing simply because the vehicle in a motor home was being used him on probation. The Califor- this case was a motor home did by someone to exchange mari- nia Supreme Court reversed not mean that it was not subject juana for sex. Several DEA his conviction, holding that to a warrantless search under agents set up surveillance in the expectation of privacy in the motor vehicle exception.30 the area of the motor home in a motor home was more like The Court stated: downtown San Diego and a dwelling and, therefore, the To distinguish between watched as the defendant search without a search warrant respondent’s motor home approached a youth. The youth did not fall within the motor and an ordinary sedan for accompanied the defendant to vehicle exception. purposes of the vehicle ex- his motor home parked in a © Mark C. Ide ception would require that nearby parking lot. The agents we apply the exception de- observed the defendant and the pending upon the size of the youth close the window shades vehicle and quality of its ap- on the motor home. The agents pointments.... We declined kept the motor home under today to distinguish between surveillance for 1 hour and 15 “worthy” and “unworthy” minutes until the youth exited vehicles which are either on the motor home. The agents the public roads and high- stopped the youth and talked ways, or situated such that with him, at which time, the it is reasonable to conclude youth admitted that he had that the vehicle is not being received marijuana in return for used as a residence.31 sex. The youth agreed to return with the agents to the motor The Court, however, made home and knock on its door. The U.S. Supreme Court a distinction between a readily When the defendant stepped out reversed the judgment of the mobile motor home parked in a of the motor home, the agents California Supreme Court and public parking lot and a motor home that is being used as a identified themselves as law ruled that the search of the 32 enforcement officers. One of the motor home was reasonable residence at a campsite. agents entered the motor home under the Fourth Amendment We need not pass on the and observed marijuana, plastic because the motor home was a application of the vehicle bags, and a scale of the kind readily movable motor vehicle exception to a motor home used to weigh drugs. The and the expectation of privacy that is situated in a way defendant was arrested, and the in a motor vehicle is signifi- or place that objectively agents impounded the motor cantly less than in a home or indicates that it is being home. A subsequent search of office. The reduced expectation used as a residence. Among the motor home at the police of privacy in the motor home the factors that might be station revealed additional was due, in part, to the fact that, relevant in determining marijuana in the cupboards and like all automobiles that are whether a warrant would refrigerator. capable of traveling on the be required in such a

August 2005 / 27 circumstance is its location, allowed under their state consti- on an interstate highway to whether the vehicle is tutions. In that regard, some Maryland. The officers waited readily mobile or instead, state courts have limited the the 13 hours for the defendant for instance, elevated on application of the motor vehicle to drive past them on the high- blocks, whether the vehicle exception under their state way before stopping his vehicle is licensed, whether it is constitutions to circumstances and conducting a warrantless connected to utilities, and when there is a separate emer- search of the vehicle for the whether it has convenient gency.43 Those state courts re- drugs. Upon searching the access to a public road.33 quire some showing by the state vehicle, the officers found the In addition to automobiles and that the exigencies of the cir- bag of crack cocaine for which motor homes, courts have cumstances made it impracti- they were looking. There was applied the motor vehicle cable for the police to obtain no exigency in the case. The exception to trucks,34 trailers35 a search warrant before they officers had ample time to pulled by trucks, boats,36 house obtain a search warrant during boats,37 airplanes,38 and even the 13-hour wait. The U.S. the sleeping compartments of Supreme Court, nevertheless, trains.39 determined that the stop and Most state courts, search of the vehicle was valid Emergency however, follow the under the motor vehicle excep- The ready mobility of a federal rule and tion because the motor vehicle vehicle is viewed by the U.S. “do not require exception does not require a Supreme Court as an inherent an emergency when separate exigency to justify a exigency that is always present applying the motor vehicle search. when conducting a motor vehicle exception. Dyson was a case where vehicle search.40 The federal the officers had plenty of time rule is that it is not required that before seizing the car to get a there be an additional separate warrant. What if officers law- emergency for the application of fully seize a car and have ample the motor vehicle exception. In searched the car. Most state opportunity to obtain a warrant Pennsylvania v. Labron,41 the courts, however, follow the after the seizure? In the previ- U.S. Supreme Court explained, federal rule and do not require ously discussed case of Cham- “If a car is readily mobile and an emergency when applying” bers v. Maroney,46 the police probable cause exists to believe the motor vehicle exception.44 had the vehicle secured and it contains contraband, the The nonemergency applica- clearly had an opportunity to Fourth Amendment thus per- tion of the motor vehicle excep- obtain a search warrant. The mits police to search the vehicle tion is best illustrated by the U.S. Supreme Court ruled that without more.”42 U.S. Supreme Court case of it was lawful for the police to States, however, are free Maryland v. Dyson.45 In Dyson, search the motor vehicle at the to be more restrictive of police Maryland police officers had station house after the vehicle conduct as a matter of state law. probable cause and 13 hours was seized. With the vehicle In some states, police conduct advance notice that the defen- in police custody, there was that is permitted under the dant would be driving a vehicle no risk that the vehicle or its U.S. Constitution may not be containing crack cocaine north contents would disappear. The

28 / FBI Law Enforcement Bulletin U.S. Supreme Court, nonethe- required to obtain a search officer was a valid search under less, ruled that it was not neces- warrant to search a vehicle the motor vehicle exception, sary to obtain a search warrant under the motor vehicle excep- even though the vehicle had to search the vehicle.47 tion, even when the vehicle is already been subjected to an In Texas v. White,48 officers impounded and they have time inventory search and was arrested a suspect who had to get a search warrant. impounded.50 attempted to pass a fraudulent What if a vehicle is in police check at a bank. An officer was custody and has already been Containers in Vehicles called and, upon his arrival at subjected to an inventory search The motor vehicle exception the scene, directed the defen- pursuant to standardized police permits officers to search not dant to park his vehicle. At that regulations? Can the police only the vehicle and trunk but point, the officer and one of the return to that vehicle later and also any containers in the bank employees saw the suspect search it again without a war- vehicle that could contain the stuffing something between the rant for evidence or contraband? evidence or contraband that is seats of his car. Ultimately, the the object of the search.51 Fur- police arrested the suspect, © Mark C. Ide thermore, the scope of a war- seized his car, and drove him rantless search of an automobile and his car to the station house. is not defined by the nature of After bringing the suspect to the container in which the the station house, the officers contraband is secreted. Rather, requested consent to search his it is defined by the object of the automobile, but the defendant search and the places in which refused. The officers then there is probable cause to searched the automobile any- believe it may be found. way and discovered four If officers have probable wrinkled fraudulent checks that cause to search a lawfully corresponded to the checks that stopped vehicle, they are justi- he had attempted to pass earlier fied under the motor vehicle at a bank. The defendant was exception in searching any part convicted for attempting to pass of the vehicle in which the a forged instrument, but his In Florida v. Myers,49 the object of the search may be conviction was overturned by defendant was arrested and his located, including containers the Texas Court of Criminal automobile was inventoried, inside the vehicle. It does not Appeals. The Texas court ruled seized, and secured in a locked matter who owns the item that that the search that turned up impound lot. Approximately is to be searched. In Wyoming v. the checks was unlawful be- 8 hours later, a police officer Houghton,52 the U.S. Supreme cause the police failed to obtain who had probable cause that the Court approved of an officer a search warrant as required by vehicle contained evidence or searching a purse found in the the Fourth Amendment. contraband went to the impound passenger compartment of an The U.S. Supreme Court lot and searched the car a automobile. The vehicle search overturned the Texas court’s second time without a warrant. was based on evidence that the decision. The Supreme Court The U.S. Supreme Court ruled driver had drug paraphernalia ruled that the officers were not that the second search by the on his person and admitted he

August 2005 / 29 was a drug user. The officer was when they were seized from the conducted without a search told that the purse belonged to a motor vehicle and could have warrant are presumed unreason- female passenger and not the searched them at that time. The able. Officers should always driver before he searched it. Court reasoned “Inasmuch as consider the benefits of the When the officer searched the the government was entitled to presumption of reasonableness purse, he found drugs and drug seize the packages and could that accompanies a search under paraphernalia inside it. The have searched them immedi- the authority of a search war- U.S. Supreme Court upheld the ately without a warrant, we rant. There are, however, well- search, ruling that the owner- conclude that the warrantless recognized exceptions to the ship of an object found and search 3 days after the pack- search warrant requirement that searched in the vehicle is ages were placed in the DEA can rebut the presumption of irrelevant to the legitimacy warehouse was reasonable and unreasonableness; one is the of the motor vehicle search. consistent with our precedent motor vehicle exception. If an Because the general rule is officer has probable cause to that the motor vehicle exception believe that evidence or con- does not require that there be an traband is located in a motor emergency, the search of the vehicle, the officer may search motor vehicle could be hours Probable cause the vehicle without a warrant to and even days after the vehicle depends on the the same degree as if he had a is seized. If packages are taken totality of the search warrant. Probable cause from a motor vehicle, those “circumstances. depends on the totality of the packages would also be subject circumstances. If an officer has to a warrantless search under sufficient evidence to establish the motor vehicle exception probable cause for a search long after they have been taken warrant, then he would have from the vehicle. For example, involving searches of im- sufficient facts to search a 53 in United States v. Johns, the pounded vehicles.”55 The Johns motor vehicle without a search U.S. Supreme Court ruled that court held out the possibility warrant. DEA agents acted lawfully that in a given case, a delay” in Courts have applied the when they conducted warrant- searching a package taken from motor vehicle exception to less searches of packages 3 days a motor vehicle could perhaps automobiles, trucks, trailers after they took the packages be unreasonable, but the defen- pulled by trucks, motor homes, from a motor vehicle. The later dants in the case before the boats, house boats, airplanes, warrantless searches were Court did not present any facts and even the sleeping compart- lawful, even though the pack- that established that the delay ments of trains. The federal rule ages were securely in DEA adversely affected their Fourth followed by most states is that custody and the agents had Amendment rights.56 if an officer has probable cause ample opportunity to obtain a that there is evidence or contra- search warrant.54 The Court Conclusion band in a motor vehicle, it is ruled that the later package Searches conducted under not required that the officer be searches were reasonable the authority of a search warrant faced with an emergency for because the agents had probable are presumed to be reasonable. him to conduct a warrantless cause to search the packages On the contrary, searches search of the vehicle.

30 / FBI Law Enforcement Bulletin Endnotes scenario. Usually, the issue is whether there is 20 E.g., United States v. Burnett, 791 F.2d 1 See generally United States v. Leon, 468 sufficient cause to search the trunk after having 64, 65 (6th Cir. 1986). U.S. 897, 922 (1984); Franks v. Delaware, 438 found drugs in the passenger compartment. In a 21 119 F.3d 18 (D.C. Cir. 1997). U.S. 154 (1978). case where drugs are found in the trunk, an 22 United States v. Staula, 80 F.3d 596, 602 2 Mincey v. Arizona, 437 U.S. 385 (1978). officer would have probable cause to arrest the (1st Cir. 1996) (odor of burnt marijuana gave 3 Carroll v. United States, 267 U.S. 132 driver and then be able to search the passenger officer probable cause to search passenger (1925). In Carroll, the searching agent started compartment of the vehicle incident to arrest compartment of truck). to open up the back cushion to the rumble seat under New York v. Belton, 453 U.S. 454 (1981). 23 See, e.g., State v. Schmeakeka, 38 P.2d on a roadster where illegal liquor was hidden 16 See United States v. Brown, 374 F.3d 633, 637-38 (Idaho App. 2001). Contra, People and in the process “did tear the cushion some.” 1326 (D.C. Cir. 2004) (false identification and v. Kazmierczak, 605 N.W.2d 667 (Mich. 2000). 267 U.S. at 172 (McReynolds, J., dissenting). stolen credit card found in passenger compart- “[T]he smell of burned, burning, and unburned See also California v. Acevedo, 500 U.S. 565 ment gave officer probable cause to search marijuana, when immediately apparent, are (1991). trunk); Whiting v. State, 725 A.2d 623 (Md. equally incriminating.” Id. at 675 n.13. 4 Pennsylvania v. Labron, 518 U.S. 938, App. 1998) (officer had probable cause to 24 9 F.3d 1487 (10th Cir. 1993). 940 (1996) (per curiam); California v. Carney, search trunk after gun and crack cocaine smok- 25 See United States v. Parker, 72 F.3d 1444 471 U.S. 386, 391-92 (1985). ing pipe were found in passenger compartment (10th Cir. 1995) (a rolled-up dollar bill with a 5 New York v. Belton, 453 U.S. 454 (1981). of car); United States v. Watson, 697 A.2d 36 white powder residue and a marijuana cigarette 6 Michigan v. Long, 463 U.S. 1032 (1983). (D.C. App. 1997) (marijuana cigarette and found on the driver were sufficient to corrob- 7 Florida v. Wells, 495 U.S. 1 (1990). white powder in six plastic bags banded orate the odor of marijuana and give probable 8 Florida v. Jimeno, 500 U.S. 248, 252 together found in passenger compartment gave cause to search the trunk); State v. Betz, 815 (1991) (In dicta the Court disapproved of probable cause to search vehicle trunk). So.2d 627 (Fla. 2002) (officer had probable prying open a locked briefcase pursuant to a cause to search trunk where he detected odor of consent search of a car trunk. In the holding, © Mark C. Ide marijuana emanating from the car; the driver however, the Court approved of the police was found to be in possession of marijuana; opening a paper bag found in a car trunk during and the driver was nervous and jittery). a consent search.). See generally United States 26 See also United States v. Ludwig, 10 F.3d v. Drayton, 536 U.S. 194 (2002); Illinois. v. 1523, 1527-28 (10th Cir. 1993) (dog alert Rodriguez, 497 U.S. 177 (1990); United States established probable cause to search trunk). v. Matlock, 415 U.S. 164 (1974); Schneckloth Cf. United States v. Williams, 69 F.3d 27, 28 v. Bustamonte, 412 U.S. 218 (1973); Bumper v. (5th Cir. 1995). North Carolina, 391 U.S. 543 (1968). 27 706 A.2d 597 (Me. 1998). 9 Illinois v. Gates, 462 U.S. 213, 232 28 State v. Wright, 977 P.2d 505, 507-08 (1983). (Utah App. 1999); United States v. Downs, 10 Llaguno v. Mingey, 763 F.2d 1560 (7th 151 F.3d 1301 (10th Cir. 1998). Cf. People v. Cir. 1985) (en banc) (plurality opinion), Kazmierczak, 605 N.W.2d 667 (Mich. 2000) abrogated in part on other grounds by County (The odor of unburnt marijuana alone was of Riverside v. McLaughlin, 500 U.S. 44 sufficient to establish probable cause to search (1991). the trunk. Although the officer smelled the 11 Illinois v. Gates, 462 U.S. 213 (1983). odor of unburnt marijuana, the court ruled that 12 267 U.S. 132 (1925). whether the odor is of burnt or unburnt 13 267 U.S. at 162. 17 557 N.E.2d 14, 19 (Mass. 1990). “Once marijuana makes no difference in establishing 14 399 U.S. 42 (1970). the officers discovered the cocaine and the probable cause to search the trunk.). In State v. 15 See California v. Acevedo, 500 U.S. 565, handgun pursuant to the protective search, Guerra, 459 A.2d 1159 (N.J. 1983), an officer 579-80 (1991) (quoting United States v. Ross, they had probable cause to search the entire detected the odor of fresh marijuana during a 456 U.S. 798, 824 (1982)). The mere fact that automobile, including the passenger compart- traffic stop on the New Jersey Turnpike. an unknown suspect has put drugs in the trunk ment and the trunk, for contraband and Ultimately, the officer searched the trunk and of a car, without more, may not be sufficient to weapons.” Id. found 176.5 pounds of marijuana. The Supreme establish probable cause that drugs would be 18 See, e.g., United States v. Brown, 334 Court of New Jersey ruled that the odor of fresh elsewhere in the car. Acevedo, supra. On the F.3d 1161, 1171 (D.C. Cir. 2003) (gun found marijuana alone was sufficient to give the other hand, additional facts known to an officer in car next to suspect, who was “tickling the officer probable cause to search the trunk. may change the result. For instance, if the handle,” after multiple gunshots were fired in 29 471 U.S. 386 (1985). suspect gets in his vehicle after putting the the vicinity gave probable cause to search the 30 If, however, a camper trailer is unhitched drugs in his trunk and an officer has informa- trunk for more weapons or amunition). and not readily mobile, then it would not be tion the vehicle is regularly used by the suspect 19 547 P.2d 417 (Cal. 1976). See also considered a motor vehicle for purposes of the to traffic in illegal drugs, arguably, an officer Burkett v. State, 607 S.W.2d 399 (Ark. 1980) motor vehicle exception. State v. Durbin, 489 could reasonably believe that the passenger (roach clip and marijuana cigarette butt in the N.W.2d 655 (Wis. App. 1992). See also State v. compartment may contain more illegal drugs or ashtray do not establish probable cause to Kypreos, 61 P.3d 352, 357 (Wash. App. 2002). drug records. This is the reverse of the typical search the trunk). 31 471 U.S. at 393-94.

August 2005 / 31 32 See United States v. Adams, 845 F. Supp. 39 United States v. Tartiglia, 864 F.2d 837, People v. Blasich, 541 N.E.2d 40 (N.Y. 1989) 1531, 1536-37 (M.D.Fla. 1994), wherein the 841-43 (D.C. Cir. 1989); United States v. (“The justifications for a warrantless search court held that the motor vehicle exception did Whitehead, 849 F.2d 849, 854 (4th Cir. 1988). conducted upon probable cause pursuant to the not apply to a motor home that was being used 40 Pennsylvania v. Labron, 518 U.S. 938 automobile exception do not dissipate merely as a temporary residence. The motor home (1996) (per curiam). because the vehicle has been placed in the contained food, clothing, and other personal 41 518 U.S. 938 (1996) (per curiam). control of the police...and the exception is effects; was hooked to an electric generator; and 42 Id. at 940. equally applicable whether the search is was located in a rural area on a private wooded 43 State v. Elison, 14 P.3d 456 (Mont. 2000) conducted at the time and place where the lot owned by the defendants, from which there (“We have consistently reaffirmed the automobile was stopped or whether, instead, was no convenient or easy access to a public requirement that, in order to justify a warrant- the vehicle is impounded and searched after road. In addition, the defendants used other less search of an automobile, the State must removal to the police station.”). vehicles located on the property for transporta- show exigent circumstances under which it was 45 527 U.S. 465 (1999). tion. See also Unites States v. Matteucci, 842 F. not practicable to obtain a warrant.”); State v. 46 399 U.S. 42 (1970). Supp. 442, 449 (D. Or. 1994), wherein the Gomez, 932 P.2d 1 (N.M. 1997) (“a warrantless 47 399 U.S. at 52. court did not allow a search of a motor home search of an automobile and its contents 48 423 U.S. 67 (1975) (per curiam). under the motor vehicle exception because it requires a particularized showing of exigent 49 466 U.S. 380 (1984) (per curiam). was being used in a state park as a residence. circumstances”); State v. Cooke, 751 A.2d 92 50 See also Michigan v. Thomas, 458 U.S. The motor home was snowed in at the park, and (N.J. 2000) (“The automobile exception applies 259 (1982) (per curiam). in order for the defendants to get to a public only in cases in which probable cause and 51 United States v. Ross, 456 U.S. 798 road, they would have to drive the motor home exigent circumstances are evident, making it (1982). down a steep hill and travel several miles in the impracticable for the police to obtain a 52 526 U.S. 295 (1999). park. Furthermore, one of the defendants told warrant.”); State v. Harnisch, 954 P.2d 1180 53 469 U.S. 478 (1985). the officer prior to his search of the motor home (Nev. 1998) (“[T]he Nevada Constitution 54 See also United States v. Albers, 136 F.3d that the motor home was used as their home requires both probable cause and exigent 670 (9th Cir. 1997), wherein the U.S. Court of because they had been “kicked out” of their circumstances in order to justify a warrantless Appeals for the Ninth Circuit ruled that it was apartment several weeks earlier. In United search of a parked, immobile, unoccupied reasonable for a National Park Service ranger States v. Levesque, 625 F. Supp. 428, 450-51 vehicle.”). to conduct a warrantless viewing of videotapes (D.N.H. 1985), the court ruled that the motor 44 State v. Werner, 615 A.2d 1010 (R.I. seized from the defendant’s car 7 to 10 days vehicle exception did not apply to a trailer that 1992) (“exigency is no longer a requirement of earlier. was situated on a lot in a trailer park, under the automobile exception”); State v. Marquardt, 55 Johns, 469 U.S. at 487. circumstances indicating that it was being used 635 N.W.2d 188 (Wis. App. 2001) (“Issues 56 The Johns Court stated: “We do not as a residence. The truck which towed the concerning whether the police could have suggest that police officers may indefinitely trailer was only a few feet from the trailer, but obtained a warrant prior to searching [the motor retain possession of a vehicle and its contents the trailer was not readily mobile because one vehicle] are not relevant to the analysis.”); State before they complete a vehicle search. Cf. end of the trailer was elevated on blocks and v. Redfearn, 441 So.2d 200, 202 (La. 1983) Coolidge v. New Hampshire, 403 U.S. 443 the trailer was connected to utilities at the (“Given that a warrantless search on the scene (1971) (White, J., dissenting). Nor do we campground. It would have taken the defend- would have been constitutional, the later search foreclose the possibility that the owner of a ants three quarters of an hour to connect the at the police pound is also constitutional.”); vehicle or its contents might attempt to prove trailer and truck before they could tow it Commonwealth v. Moses, 557 N.E.2d 14 that delay in the completion of a vehicle search from the trailer park. But see United States (Mass. 1990) (“A reasonable delay in a was unreasonable because it adversely affected v. Hamilton, 792 F.2d 837 (9th Cir. 1986), warrantless automobile search does not violate a privacy or possessory interest. Cf. United disapproved on other grounds, United States the Fourth Amendment or art. 14 [of the Mass. States v. Place, 462 U.S. 696 (1983).... v. Kim, 105 F.3d 1579 (9th Cir. 1997) (motor Const.]”); State v. Gallant, 574 A.2d 385, 391 Respondents do not challenge the legitimacy of vehicle exception applied to a motor home (N.H. 1990) (“For constitutional purposes we the seizure of the trucks or the packages, and parked in driveway and plugged to electrical see no difference between a warrantless search they never sought return of the property. Thus, utilities by an extension cord). conducted at the location where the vehicle is respondents have not even alleged, much less 33 471 U.S. at 394 n.3. first stopped and a subsequent warrantless proved, that the delay in the search of packages 34 United States v. Johns, 469 U.S. 478 search that takes place at another location, so adversely affected legitimate interests protected (1985). long as the subsequent search is conducted as by the Fourth Amendment.” 469 U.S. at 487. 35 United States v. Forrest, 620 F.2d 446 soon as practicable and is motivated by either (5th Cir. 1980). safety or law enforcement concerns....The Law enforcement officers of other than 36 United States v. Lee, 274 U.S. 559 State, however, bears the burden, as with other federal jurisdiction who are interested (1927). circumstances justifying a warrantless search, in this article should consult their legal 37 United States v. Hill, 855 F.2d 664 (10th of proving by a preponderance of the evidence advisors. Some police procedures ruled Cir. 1988). the presence of public safety or law enforce- permissible under federal constitutional 38 United States v. Nigro, 727 F.2d 100, ment factors requiring removal from the law are of questionable legality under 106-07 (6th Cir. 1984); United States v. location where probable cause and exigency Montgomery, 620 F.2d 753 (10th Cir. 1980). would have allowed a warrantless search.”); state law or are not permitted at all.

32 / FBI Law Enforcement Bulletin The Bulletin Notes

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

Early one morning, Officer Robert Bohnstadt of the North Tonawanda, New York, Police Department responded to a fire at a small apartment building. Shortly after arrival, he was met by two firefighters; the three entered the residence and escorted one individual to safety. Once outside, Officer Bohnstadt was advised that there could be other victims. With the fire personnel busy retrieving equipment, he entered the building alone, despite the steadily growing fire and smoke. Officer Bohnstadt located an apartment with an elderly man inside, advised him of the fire and to get ready for evacuation, and checked on the other unit, at which he got no response. Upon returning to assist the elderly victim, Officer Bohnstadt Officer Bohnstadt found the door locked. Further, because of the noise and smoke, he could not hear or speak to use his radio to call for help for himself and the victims, now trapped upstairs by the intense heat, smoke, and flames. Officer Bohnstadt kicked in the door and entered. He then placed his patrol jacket at the bottom of the front door to slow the entrance of the smoke and used the individual’s phone to call dispatch to advise them of his and the elderly victim’s location and that there possibly was a tenant in the other apartment. He then waited with the elderly man until fire personnel arrived. All parties in both units were brought out to safety and subsequently received medical attention. The brave, selfless actions of Officer Bohnstadt helped save these individuals’ lives.

While on patrol, Officer Christopher Lacina of the Northbrook, Illinois, Police Department observed smoke billowing from the front door of a residence and immediately requested dispatch to notify the fire department. Knowing that it would take several minutes for assistance to arrive, Officer Lacina quickly responded to the scene and yelled to anyone inside. After hearing a call coming from the house, he disregarded his own safety and entered. Officer Lacina located a man lying in the bedroom and helped him outside. The victim then explained that his wife was still in the residence. Officer Lacina immediately reentered and found the woman and her dog in

Officer Lacina the kitchen. He then brought them outside to safety. Later, both the man and Officer Lacina received medical attention for their injuries. Because of Officer Lacina’s quick thinking and brav- Nominations for the Bulletin Notes should be based ery, these individuals’ lives were saved and a on either the rescue of one or more citizens or arrest(s) made at unusual risk to an officer’s safety. Submissions tragic event was minimized. should include a short write-up (maximum of 250 words), a separate photograph of each nominee, and a letter from the department’s ranking officer endorsing the nomination. Submissions should be sent to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135. U.S. Department of Justice Periodicals Federal Bureau of Investigation Postage and Fees Paid Federal Bureau of Investigation FBI Law Enforcement Bulletin ISSN 0014-5688 935 Pennsylvania Avenue, N.W. Washington, DC 20535-0001

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