~ORCEMENT rBl BULLETIN

SEPTEMBER 1982. VOLUME 51. NUMBER 9

Contents

Crime Problems 1 Nuclear Security in a Sagebrush Environment By Harold J, Argyle

Personnel 7 Family Therapy in Law Enforcement: A New Approach to an Old Problem By James T. Reese

Police-Community 12 INCERT­The Citizen/Police Connection Relations By Kenneth L. Hollingsworth

Operations 18 The Police Role in the Case of the Mentally Retarded Child By Martin A. Greenberg. J,D,. and Ellen C, Wertlieb. Ph,D.

The Legal Digest 26 Reasonable Expectation of Privacy, the Employee- Informant, and Document Seizures (Conclusion) By Michael Callahan

32 Wanted By the FBI

The Cover: Federal Bureau of Investigation Published by the Office of Congressional and A remote location in United States Department of Justice Public Affairs, Roger S. Young Idaho provides an Washington. D.C, 20535 excellent setting for Assistant Director a nuclear testing site. William H. Webster. Director Editor-Thomas J. Deakin See article p. 1. Assistant Editor- Kathryn E SuleWSki Art Oifector-KeVln J. Mulholland The Attorney General has determined that the publlcat.on 01 th.s penod.cal .s necessary In the transact.on 01 the W"terI Edllor- Karen McCarron public bUSiness reqUired by law 01 the Department 01 Production Manager-Jeff rey L. Summers Jusllce Use 01 lunds lor pnnllng thiS penodlcal has been approved by the Director 01 the Oilice 01 Management and Budget through February 21 , 1983.

ISSN 0014-5688 USPS 383-310

Even to the untrained eye, the The Idaho National Engineering stagecoach trails are still visible. Yet, a Laboratory (INEL) was established by short sagebrush-covered distance the Federal Government in 1949, on away is a nuclear reactor complex the Snake River Plain between Idaho where electrical power is being gener• Falls and Arco, Idaho. Occupying a land ated from a liquid metal-cooled breeder mass of 270 square miles, it was first reactor. This is a facility where unused, known as the National Reactor Testing highly enriched U-235 nuclear material Station and was specifically selected as used in the nuclear Navy is being a remote location where new kinds of chemically separated and concentrated nuclear reactors could be built and Mr. Argyle from "spent fuel elements" behind tested without jeopardizing any -major massive barriers of. metal, earth, water, populated areas. Atomic reactors were and concrete and where irradiation ef• a new technology, and such an isolated fects experiments, which would normal• and large land area was desirable as a ly take years to accomplish, are being safety precaution for operating new de• conducted on materials in days to sign reactors. Success of the program weeks in a test reactor. The antelope, is evidenced by the fact that initially, no rabbits, coyote, eagles, rattlesnakes, more than four or five reactor facilities and a myriad of other large and small were scheduled to be built. Today, 33 animals and birds, along with grazing years later, of the 52 reactors at INEL, cattle and sheep, continue their unend• only 15 are still operable. The others ing quest for existence with hardly a have been shutdown and phased out second glance to these additions to of their research missions. Many of their environment. They are oftentimes their components have been "canni• seen grazing along the fence or even balized" for use in new projects or for on the lawns of the reactor and support maintenance or modifications to exist• facilities. An environmental park desig• ing ones. There have been more nucle• nation permits these animals and birds ar reactors and more different types of to continue this unusual, but totally reactors built at the INEL than in any compatible, paradox, with little inconve• other place in the world, involving nience. Some sage grouse are tagged some of the most advanced research with red-wing ribbons to study their programs known to mankind. The sig• migration, and instrument collars are nificant engineering and scientific put on a few antelope and coyote to achievements and breakthroughs are record their travels and locate their numerous and are recognized world• dens. Continuing studies have revealed wide. In 1966, President Johnson dedi• how well the animals have adapted to cated the first reactor facility built at this altered environment. As hazardous the INEL as a historical landmark be• as this nuclear laboratory environment cause it was the first in the world to may seem, the biggest danger to the generate electricity. animals are the vehicles driven by site The relatively flat, remote location employees. of the Snake River Plain was ideal for the necessary security precautions. The primary reasons for selecting this area were the existing headquarters

2 I FBI Law Enforcement Bulletin ______area, a railhead, a Marine barracks, persons were required to have an iden• Today, unless the fuel is in a classified and Navy housing. These facilities sup• tification device issued by the Depart• configuration or is still associated with a ported a Navy program to test fire ment of Energy (DOE) security to verify classified program, it is unclassified. Inewly relined 16-inch gun barrels from this fact. All of these procedures are Because of the strategic importance of the U.S. fleet battleships during World still in effect. this material, security procedures often War II. Several years later, additional The isolation of the testing site has exceeding those required for classifica• desert land was acquired to provide been dramatically reduced by the avail• tion have been initiated. It is painfully the testing " buffer" for the INEL nucle• ability of helicopters and all-terrain vehi• evident that there are elements in our ar facility until the present total of 890 cles, including trail bikes and worldwide society who will pay almost square miles was involved. snowmobiles. Also, many of the pro• any price or go to any length to obtain The initial security program needed grams that were highly classified in the this material. Possession of this materi• to protect various kinds and types of 1950's have been declassified. The al by malevolent and irresponsible per• reactors was similar to that required for "Atoms for Peace" program shared sons could be catastrophic-entire the protection of both classified docu• many of our previously "secret" tech• nations could be held at ransom or ments and materials. This required well• nologies, including the special nuclear blackmailed. trained guards, 8-foot chain link fences materials used in the reactor operations, Accordingly, security programs with barbed wire selvage to define the with not only private U.S. interests have undergone dramatic upgrading operating area perimeters, security but also with international concerns. during the past few years. A combina- lighting, guard-controlled entrances, picture identification badges (to indi• cate authorized access and any limita• tions of such access), combination• locked repositories, safes and vaults for storage and key control, alarm sys• tems, and special vehicles. Idaho also had clearance program requirements to verify that permitting access to the clas• sified matter would not endanger the common defense and security. Security education programs were designed to keep employees constantly aware of their responsibilities and the potential consequences of straying from policies and procedures. Document controls re• quired marking, storage, accounting, transmitting, and destruction proce• dures. We also had a general adminis• trative security program to control the entire INEL land mass (exclusive of the individually fenced reactor areas) for employee and government property controls, area overflights, and contra• band, etc. Access within our bound• aries off the public thoroughfares was limited to "official business," and all

Not too friendly citizen

September 1982 / 3 Butte, adjacent to the south bound• aries of the INEL, is sometimes used as an excellent launching point by hang glider pilots, and it has not been uncommon for the INEL guard forces to stop several friends of a glider pilot who was last seen going " up" over INEL property. Indians from various tribes also have been apprehended in the area, exercising what they consider to be tribal treaty rights to hunt ante• lope and other animals. Both contract and DOE uniformed forces are involved in the INEL security tion of multiple barriers and fencing is the latest "state of the art" are replac• program. Generally, the contractor used, and improved alarms and lighting, ing older models to improve coverage guards control access within the indi• together with closed-circuit TV, provide and ensure operation under all condi• vidual plant facilities, while the Federal improved assessment capabilities. To tions. Guard forces are receiving in• force is responsible for the control of minimize the unauthorized introduction tensive training in the use of special the entire land mass outside of the of prohibitive items or removal of nucle• weapons, special armored vehicles, individually fenced reactor plant areas ar material, highly sophisticated per• night vision devices, and technical com• and is responsible for backup or sonnel monitoring and X-ray equipment munications equipment. Vaults are be• emergency response to any facility. As have been installed to check employees ing upgraded to better protect material a result, the Federal forces are specifi• and their lunch boxes, briefcases, etc., and control access. In general, while cally trained in Special Weapons and when they enter or leave work or mate• protection and control of classified mat• Tactics (SWAT). rial access areas. Plant entrance guard• ter is still a major concern, the basic The INEL falls within the provi• houses, communications centers, and thrust is now toward nuclear material sions of the State of Idaho emergency monitoring control locations are being protection, and we're making it as tough plan. The Idaho State Police are called "hardened" to ensure a secure and and as costly as possible for someone upon for assistance when a situation is uninterrupted operation. Computerized to gain unauthorized access. beyond control of the onsite forces. access controls using key card systems Administrative security problems With their authority for deputization, we record all accesses for emergency situ• have also increased. With approximate• depend heavily upon them as a major ations, as well as for information and ly 8,800 operational and construction source of emergency assistance. The investigative purposes. They also per• people now on site, we experience the FBI also responds to emergencies. mit a more positive control to authorized same common thefts, misuse of prop• areas for a given employee and those erty, traffic problems, etc., as most periods of the day such access is permit• municipal and county law enforcement ted. Two-man rules are enforced, and organizations. " Antinuclear" activities, additional background clearance inves• while not yet a major problem, are also tigations are being made on employees increasing. who use, control, or protect nuclear The "isolated" INEL location has material, and on employees, such as also provided a few unique problems in guards and reactor operators, whose the area of administrative security con• work assignments require the utmost trols. For instance, there is a security confidence. Alarm systems involving problem with hang gliders being both an unauthorized air flight over our property and the glider operators being unauthorized entries. The big Southern

4 / FBI Law Enforcement Bulletin ______... -;

OOE security officer weapons qualification session

September 1982 I 5 Warning Communications Center (WCC) Control Panel

Extensive employee lists are main• tained along with lists of agencies to be notified in event of an incident or emergency. Personnel at the center assist by calling wreckers, ambu• lances, employers, etc., in case of an accident. The FBI was woven into the tapes• try in the INEL security program from the beginning. Until the last few years, the Bureau performed all of the back• ground investigations for our clearance program. The Office of Personnel Man• agement now provides these for the lessothan critically sensitive positions• the critically sensitive posiMns still re• main a Bureau responsibility. The Bu• The DOE response officers work a counties involved in the INEL land reau has also provided valuable 4-platoon industrial work schedule. All mass, and violators of non-Federal assistance in investigations of govern• must meet rigid physical qualifications, laws are normally sent to the county ment property thefts, suspected sabo• and some officers are subject to psy• seat where the arrest or citing occur. tage, and other violations of Federal chological testing as a means of ensur• Another vital part of the INEL op• law, along with training for emergency ing their capabilities to react under erations and security program is a response and SWAT training. hostile conditions. All response officers Warning Communications Center. This The past 30 years have shown are armed with a .357 -caliber handgun center, operated around-the-clock by that one of man's most awesome tech• as their personal weapon with which DOE-IE Federal uniformed personnel, nologies-atomic energy-can blos• they must qualify annually. is considered the nerve center of the som among the oldest of nature's In addition, response officers must Idaho Operations Office during any developments-sagebrush and lava qualify with 12-gage riot guns, M-16 emergency situation. Those responsi• rock-in a most unusual but surpris• rifles, 37-mm. gas launchers, .30-cali• ble for the site actions during severe ingly compatible environment. While ber machineguns (mounted both on weather, fire, flood, radiological or in• the responsibility for INEL programs emergency vehicles and land ground dustrial incidents, civil disturbance or has evolved from the Atomic Energy mounts), and the American 180 .22• national defense emergency report to Commission, to the Energy Research caliber laser beam sighted machine• this emergency center to assume con• and Development Administration, to gun. Soon, these officers will use M-60 trol. The center monitors and controls the Department of Energy, and very and .50-caliber machineguns on both 19 radio nets and can "tie" any or all probably to some other Federal entity vehicle and ground mounts. Each offi• together as necessary. They have within the next year, some things re• cer also carries mace and a 3-fre• State police, city police, State Highway main constant: The new bloom of quency radio on the security net. In Department, National Warning System sagebrush each spring, a new supply addition to firearms training, officers (NAWAS), and Radio Amateur Civil of coyote pups and antelope fawns, also receive instruction in public rela• Emergency Service (RACES) monitor• and the phasing out of certain nuclear tions, report writing, first aid, and laws ing the radio capabilities and all com• programs and the development of new of arrest, as well as special radiological munications to the center can be ones. fBI monitoring and emergency response recorded. requirements. The DOE force is depu• tized in the Idaho State Police to permit enforcement of State traffic regulations on our site roadways, trespass laws, etc. There are five separate Idaho

6 I FBI Law Enforcement Bulletin Family Therapy in Lavv Enforcement A Ne\N Approach to an Old Problem

By JAMES T. REESE Special Agent ~ Behavioral Science Unit FBI Academy Quantico, Va.

------__September1982 / 7 Much has been written about the Society has not totally ignored thi law enforcement occupation. The changing character of families. Specia stress of being a police officer has groups, such as Alcoholics Anony been researched and the major stres• mous, drug rehabilitation centers, an sors identified.1 Just as these various homes for unwed mothers, are at stressors affect the officer, they can tempting to save families by helping t subsequently impact upon the family solve family problems. Based solely 0 as wel1. 2 All families have plans for the vast number of these groups an achieving certain goals. Family thera• the large size of their clientele, howev pists Kantor and Lehr define these er, it seems that just treating symptom SpecmlAgentReese family plans or strategies as "a purpo• and reacting to the tragedies of individ sive pattern of moves toward a target uals is not enough. For many, perhap or goal made by two or more people all family members seeking help, thei who are systematically bound in a so• symptoms have a meaning only whe cial-biological arrangement." 3 The fam• considered in the larger context of th ily of a police officer is no exception. entire family. In many instances, the law enforce• Police families differ in makeup a ment occupation can upset, alter, much as any other family. Thus, ther or destroy this family strategy. It is is no stereotypic police family. Effort important, therefore, to view the family have been made, however, to deter as a whole, to consider the police offi• mine whether there is a stereotypi cer (husband/father or wife/mother) police officer. Dr. Michael Roberts, Di as a part of this whole, and to consider rector of Psychological Services, Sa the timeliness and usefulness of family Jose, Calif., Police Department, ha therapy for the police family. determined in his studies that the ma jority of male officers are only sons 0 The Police Family first-born sons. His theory of the ste While the police family has been eotypic male officer revolves aroun the subject of numerous written works, the concept of "responsibility absor family therapy has not yet surfaced or tion" behavior; that is, the only or 01 been suggested as a possible remedy dest son is always given th for problems within the police family. responsibility to "look after things" i Increasingly, Americans are becoming the father's absence. As early as ag aware that the family in America is 5, the son may be told, "Take care changing. 4 Institutions such as schools mom while I'm gone."6 It has Ion and churches, which once had sub• been recognized that as adults, peopl stantial influence on adults and chil• recapitulate -experiences they had dren alike, are often no longer revered children.7 by either. The influence of these tradi• Dr. Martin Reiser, Director of th tional institutions appear minimal, at Los Angeles, Calif., Police Depa best. There are those who even be• ment's Psychological Services, is lieve that the family, as we know it, is pioneer in the field of police psychol 5 not just changing, but disappearing. gy and police stress. Reiser contend that there is an inculturation process i police academies which "shapes young officers. In essence, he stat that recruits learn more than just skill for policing. They also learn behavi

8 I FBI Law Enforcement Bulletin ------"1 "Family therapy is a new and different concept which takes into account the philosophy and orientation of the human condition in a family context."

and attitudes in keeping with the police In a traditional psychotherapeutic on the relationships between the var• image. Still later in their careers, they approach, the person designated as ious members of the family. Because succumb to the " John Wayne Syn• the " patient" begins therapy sessions the symptoms are viewed as byprod• drome," which leads officers to exhibit with a mental health professional, i.e., ucts of relationship events, the proc• "macho" behavior, lose sensitivity for psychiatrist, psychologist, or other esses within the family unit become of the public they serve, and become very counselor. Unfortunately, however, the paramount importance. authoritarian. patient may only present to the doctor Human beings are products of As there are some definable offi• selected behaviors from his environ• their environments. It seems logical, cer traits and stresses, so are there ment. Behavior does not occur in a therefore, that no other environment comparable family experiences and vacuum. would have greater impact on an indi• stresses which are stereo typic to po• Mental health professionals are vidual than the family. When problems lice families. Police work continually now beginning to look at the family as arise, whether mental, behavioral, or calls upon the resources of all family a system and as an extremely influen• emotional, it seems wise to treat the members. The wife resents the term tial variable in the behavior of individ• environment-the family-not merely "pig" and defends her husband's ca• uals. Law enforcement is also the one who exhibits the behavior. reer in the face of all odds. The daugh• beginning to view its officers in the After all, in the final analysis, the indi• ter worries about returning home late family setting. Although an integral part vidual will eventually have to return to from a date because she knows her of any law enforcement agency has the system. dad, "the cop," will be waiting to inter• long been thought to be the individual It would be worthwhile, therefore, rogate her boyfriend. The 14-year-old police officer, this concept has under• for police departments to consider the son's friends dare him to sneak into a gone some modification in the recent option of family therapy. Numerous de• circus, telling him he won't because his past.8 partments now have in-house psycho• dad is a policeman. Thus, the officer's The FBI has taken significant logical services programs; other job comes home regardless of his ef• steps through its psychological serv• departments have mental health pro• forts to leave the problems of the day ices program to view the working unit fessionals on call. These services are at work. And when the stress of the in the Bureau on more than just an accessible, by choice, to officers who officer's job gets to be excessive, help individual basis. Rather, the Agent and believe they are in need of help. There is in order for the entire family. his family are of group importance.9 are also specific instances when an Psychotherapy has long been the Instituting this concept and attempting officer may be ordered to have a ses• suggested remedy whenever any to apply it on a national level is a sion or sessions with a psychologist or member of a family experiences men• formidable task. It necessitates that psychiatrist. These sessions are usual• tal difficulties. Sigmund Freud, the the needs of the Bureau be met in ly mandatory when an officer has been father of psychotherapy, emphasized conjunction with family considerations traumatized in conjunction with his job. certain types of expression in mental whenever feasible. It is a progressive He may be experiencing trauma or sur• illness, such as intrapsychic events, and challenging step. vivor's guilt, or his behavior and/or defense mechanisms, conflict, and the Family therapy views the family as decision making may have been chal• subconscious. Although psychothera• a system in which each member is an lenged regarding his suitability to con• pists since Freud have varied in their integral part of the functioning whole. tinue his career in law enforcement. approaches, the theme continues to be The family system has been defined as Some of these same departments treatment of the individual. Family ther• an organizationally complex, open, have realized the effects of the police apy is a new and different concept adaptive, information-processing sys• profession on officers' spouses. Many which takes into account the philos• tem. 10 In family therapy, the focus is not departments have spouse programs ophy and orientation of the human so much on the relationship between which provide special instruction in the condition in a family context. the therapist and the patient, but rather unique stresses of police work. 11 Since

September 1982 / 9 "Continually existent stressors, such as role conflict and role ambiguity, affect the officer." many departments already have some Following this grueling experience, "Obviously many of the job stress• psychological services available, it Lewis was sent home. With him went es from within and outside the organi• would be advisable to consider ex• the memory that for approximately an zation impinge not only on the officer, panding services to incorporate family hour he stood by the man he killed. He but also on his wife and family." 12 therapy. also believes that the department is no Many officers make the decision not to longer supportive of him. Rather, it ap• communicate the details of their job to Officer Trauma pears to be seeking his indictment in their families. They believe that only The following scenario provides order to avoid vicarious liability. The another officer can understand what an example of how the family therapy impact of such an event on an officer they are experiencing or feeling. A concept can work. While based on can be devastating. In only some de• comment by Virginia Satir is therefore purely fictitious events, occurrences of partments will he see a mental health relevant. She states that it is impossi• this type are not uncommon to law professional before his release. But the ble to not communicate. In fact, she enforcement in America. impact does not end there. The effel!ts places the spoken word toward the John Lewis is a police officer. He on the family may be even greater. bottom of the list of effective ways to has been on the force for 14 years, is One part of the family system has un• communicate. 13 Thus, even silence or 35 years old, has been married for 17 dergone some serious alterations; in the withdrawal or isolation of an officer years, and has two children, Mark, 14 systems theory, the entire family sys• is powerful communication and has years old, and Alice, 16 years old. tem will be affected. great influence upon the family s~stem. One particular evening, not unlike Communication may be one of the It is not necessary for an officer to any other evening on the traffic detail, first areas of the family system that is be involved in something as serious as Officer Lewis observed a car with a affected. Consider the case of Officer an armed confrontation for this lack of rear red lens missing. He pulled the Lewis. Communication in his family communication to occur. Officers are vehicle over, got out of his patrol car, may be nonexistent at this point. Lewis confronted daily with frustrating situa• and began to approach the other car. has told the story so many times, he is tions and untold departmental pres• The vehicle appeared to be occupied tired of it. He does not care to sit down sures. "These pressures affect their by two males. It was dark-10:05 with his wife or other family members relationship with their wives and chil• p.m.-and further identification was not to discuss it. The media floods the dren as well as the difficulties subse• possible during his approach. When airwaves with their version of what quently encountered." 14 Continually Officer Lewis was approximately 10 happened or what their sources say existent stressors, such as role conflict feet from the vehicle, the driver bran• happened. This may be the only ver• and role ambiguity, affect the officer. dished what appeared to be a small sion the family hears. The phone be• Due to the paramilitary structure of the handgun. Lewis, out of options, drew gins to ring at the officer's home. police profession and the inculturation his service revolver and fatally wound• Callers include other officers offering process to which the officer has been ed the driver. He then arrested the congratulations, friends seeking the subjected, there is no place on the job other male and called for assistance. story firsthand, and friends of the de• to vent anger or show pain. When Officer Lewis remained at the ceased saying "we'll get even." Thus, anger is vented on the job, it is occas• scene for approximately 90 minutes, this event has had an impact on the sionally aimed against the public the during which time he was questioned entire family. While the officer may be officer serves or is in the form of a extensively by the backup unit. He was offered aSSistance, the family is typi• "grumble session" over a cup of cof• then ordered to return to the depart• cally ignored. fee with fellow officers. These officers ment, where he was again questioned, are just a few steps closer to succumb• once by the homicide unit, in the event ing to burnout. it was a "bad shooting" and thus pros• "Because there is no place at ecutable, and once by the internal af• work to disperse the anger and frustra• fairs unit to determine whether Lewis tion of the job, it is often carried home, had acted within departmental guide• and the wife and family may 'get it' lines. without provocation. After a rough day, an officer may arrive home and snap at

10 I FBI Law Enforcement Bulletin ______his wife because she is the first one to "identified patient." In this sense, the Footnotes 1 W. Kroes and J. Hurrell, eds., Job Stress and the greet him." 15 Murray Bowen, a noted therapist is a coach-one who keeps Police OfffC6( (Washington, D.C.: U.S. Department of family therapist, refers to this type of the clients from getting caught in an Health, Education, and Welfare, 1976). 2 M. Reiser, "Some Organizational Stresses on Po• activity within a family as "triangula• emotional system that assigns blame licemen," Journal of Police Science and Administration, tion." 16 He notes that the pressure need or guilt. 1974,vol. 2., No. 2, pp. 156-159. 3 D. Kantor and W.Lehr, Inside the Family (New York: not be from an external source but can It is important to note that while Harper-Colophon Books, 1975), p. 18. •A.Toftler,Future Shock (New York: Random be created within the family configura• the concept of family therapy is some• House, 1970). tion. The best-known triangle is that of what consistent, the various therapists •W. Lifton and T. Tavantzis, "Facilitating Surrogate Families," Journal of the Association of Specialists in the husband/wife/mother-in-Iaw. Us• engaged in this field of practice have Group Work, 1979, No.4, pp. 104-109, cited in W. Lifton, ing this same concept, the job can varying opinions and individual styles. T. Tavantzis,and W.Mooney,"The Disappearing Family: The become the third corner of the triangle, Much like the many forms of psycho• Role of Counselors in Creating Surrogate Family." The therapy, family therapies differ. While Personnel and Guidance Joumal, November 1979, p. 161. along with the husband and wife. It is •M. Roberts, lecturebefore the National Executive not unthinkable that the husband, due some therapists will deal with the hus• Institute, FBI Academy, Quantico, Va., May 19, 1979. band and wife,17 others will include the 7 V. Satir, Conjoint Family Therapy (Palo Alto, Calif.: to lack of support and positive rein• Science and Behavior Books, 1964). forcement at work, will unnecessarily children and any other adult significant • M. Reiser, "The Problems of Police Officers' Wrves," The Police Chief, April 1978, pp. 38--42. scold his children. He may merely be to the family.18 The concept is innova• •D. Soskis and C. Soskis, presentation at the Federal attempting to determine whether his tive-the first "whole family" treatment Bureau of Irrvestigation's Special Agent in Charge Confer• ence, Williamsburg, Va., March 30, 1981. wife is supportive. Thus, he scolds his was only in the mid-1960's-therefore, 10 D. Kantor and W. Lehr, supra, p. 18. more changes can be expected. 11 P. Maynard and N. Maynard "Preventing Police children and looks to his wife to see if Family Stress Through Couples Communication Training," she will support him or counter his The Police Chief, February 1980, pp. 30-31 . efforts. Usually, no one in this family is Conclusion 12 Reiser, supra, p. 40. 13 V. Satir, supra. aware that the purpose of this intense Families are significant systems of 14 J. Stratton, "Pressures in law Enforcement Mar• paramount importance to individuals. riages, " The Police Chief, November 1975, pp. 44--47. triangulation is to gain support, not to ,. Ibid, p.45 punish the children. Family therapy The family system should be balanced ,. E. Carter and M. McGoldrick, The Family Ufe Cycle and a state of homeostasis should be (New York: Gardner Press, 1980). clarifies this issue. 17 Ibid. maintained. 19 ,. J. Haley, Problem-SoMng Therapy (New York: In all these Situations, the family Harper-ColophQn Books, 1976). must be viewed as a system. Systems Regardless of the style of therapy, ,. R.Grinder and V. Satir, Changing With Families of all kinds work on an "input-output" the importance lies in the fact that the (Palo Alto, Calif.: Science and Behavior Books, 1976). 20 I. Reiss, The Family System In America (New York: basis. If, as in the earlier example, the family, not just an individual in the fam• Holt, Rinehart and Winston, 1971), p. 414. output, or behavior, is a shooting, it is ily, is treated. This concept of therapy not a solved problem if, through ther• has very special applicability for deal• apy, only the officer's feedback is clari• ing with stress within the police family. fied and subsequent input is altered. "Change is inevitable, but the radi• Family therapy ensures that all the cal changes are behind us and not parts are informed and gets the proc• ahead of us. We now possess a family ess back into syncronized movement. system congruent in many ways with Systems have homeostasis (stay• our urban-industry society." 20 Efforts ing power), communication between must continue to ~e focused on the parts, and a circulating feedback police family as a system, for this is the mechanism. They must all work togeth• environment in which we all live and find our greatest support. er in balance and harmony. The thera• I'BI pist in family counseling is a facilitator assisting the family in resolving differ• ences, clarifying issues, solving prob• lems, and taking the pressure off the

September 1982 / 11 ~lliJ.©@o@g)~~~ ~l!.~~fuw_

INCERT The Citizen/Police Connection By 1st SGT. KENNETH L. HOLLINGSWORTH Indiana State Police Indianapolis, Ind.

12 I FBI Law Enforcement Bulletin __ During the height of a recent These 18 four-wheel drive vehicle snowstorm that reached blizzard pro• operators had three things in common. portions, the post commander of a They were dedicated, responsible citi• northern Indiana State Police district zens who wanted to assist others, they received a telephone call from an obvi• belonged to organized four-wheel drive ously frightened young woman. She vehicle clubs, and they were all work• explained that she desperately needed ing with the Indiana State Police and assistance-she was in labor. Knowing other agencies in the area as part of that a trooper could not get to the "INCERT"-the INdiana Council of residence in a patrol vehicle, the post Emergency Response Teams. First Sergeant Hollingsworth commander informed her that two civil• The birth of INCERT occurred im• ians operating a four-wheel drive vehi• mediately after the great blizzard of cle would render her assistance. He January 1978, which blanketed Indi• further explained that her rescuers ana. As in other States, the Indiana would identify themselves by showing State Police had difficulty in coping identification cards with the word "IN• with the demands that were created by CERT" imprinted on them. They ar• the magnitude of the blizzard. The de• rived a short time later, properly partment, along with other Indiana en• identified themselves, and placed her forcement agencies, attempted to in a four-wheel drive vehicle. Enroute respond to the crisis by committing all to the hospital, the woman noticed that available resources. However, there one of her rescuers was using an ama• were not enough officers to answer the teur 2-meter hand radio to tell some• thousands of calls for assistance, and one at the State police post that she many of our personnel were further had been picked up and to give their limited by their inability to get out of estimated time of arrival at the hospi• their own driveways. Thus, the Indiana tal. As the woman was going inside the State Police found itself unable to re• hospital, she noticed hospital emer• spond in an emergency situation as it gency personnel disembark from two should have because of a basic lack of more four-wheel drive vehicles. preparation in the areas of interagency John T. Shettle Twenty minutes after her safe ar• communications, transportation, equip• Superintendent rival at the hospital, the patient gave ment, and personnel. Our salvation birth to a baby daughter. The new was the hundreds of citizen volunteers mother recognized one of the attend• who managed to get through jammed ing nurses as one of the persons who telephone lines at all 19 State police had gotten out of a four-wheel drive districts and into local law enforcement vehicle when she was arriving at the and other emergency response agen• hospital. If she had inquired further, cies to offer their assistance. This as• she would have discovered that the 3 sistance generally came from existing four-wheel drive vehicles were part of a organized civilian clubs, such as four• group of 18 that had been rendering wheel drive vehicle clubs, amateur and service that morning to citizens in citizens' band radio organizations, and need. The vehicles were used to deliv• snowmobile organizations. With the in• er emergency personnel and patients valuable assistance of these groups, to local hospitals, pickup and deliver we were able to survive the crisis. food and medicine, and rescue strand• ed motorists, taking them to National Guard Armories and Red Cross shel• ters.

September 1982 / 13 "INCERT is the statewide establishment of a giant spiderweb of people, communications, and transportation directed toward reacting to and resolving emergency or situational problems that may arise."

After the 1978 blizzard, the Indi• the establishment of a volunteer orga• clubs, amateur radio clubs, four-wheel ana State Police recognized the need nization that worked with police per• drive vehicle clubs, snowmobile clubs, to address three basic areas in at• sonnel in the discharge of their flying organizations, volunteer fire de• tempting to deal with such emergen• emergency functions during the bliz• partments, and any other citizen group cies. First, there was difficulty in zard and the flooding of some of the willing to contribute their time. meeting service demands-gone was rivers in the area. Prior to the blizzard, In many instances, the participat• the idea that we could handle any such they had been formed into teams com• ing organizations would be working situation without assistance. Second, posed primarily of individuals from the very closely with representatives of the all response organizations needed to four-wheel drive vehicle clubs, amateur State Civil Defense Department. Under get together to formulate a unified re• radio groups, and CB organizations. the guidelines of the Indiana Civil De• sponse plan. Third, the blizzard had Lines of communications which by• fense Act of 1975, in the event of a revealed the outstanding capabilities to passed the use of the telephone had proclaimed disaster, the organizations assist law enforcement already exist• already been established, since tele• would function under the direction of ing within the volunteer citizen organi• phone lines could be tied up during this department. In such a situation, zations. adverse conditions. A 2-meter band the volunteer organizations would be In light of the proven benefits of amateur radio base station, along with able to enhance the activities of the working with such individuals and orga• a CB base station, had already been civil defense department. nizations, it was decided that the de• installed at the local State police head• INCERT can be viewed as an um• partment should attempt to organize quarters facility for use in emergency brella organization. It does not attempt and coordinate the activities of the situations. to usurp the duties of existing groups or many citizens' groups that had the ca• When the blizzard strUCk, one organizations already involved in local pability of offering their services, equip• phone call from the district post com• emergency response plans. Instead, it ment, facilities, and expertise during a mander to selected volunteer person• attempts to develop and coordinate time of crisis. nel started the ball rolling. Civilians their capabilities in order to work to• Officers in the northwest section owning four-wheel drive vehicles with gether to the advantage of all. INCERT of the State had already established a CB radios picked up assigned amateur has also sought to expand the horizons very positive working relationship with radio personnel who plugged 2-meter of the clubs to include not only local or various volunteer groups. It was possi• band radios into the cigarette lighters county participation but also statewide ble that their accomplishments in orga• in the vehicles and proceeded to head• involvement. By working together to• nization and development might serve quarters. Once there, predesignated ward a common goal, each group is able as the prototype for the proposed amateurs and CB personnel manned to draw upon and complement the activ• State program. In October 1977, they their respective base stations within ities of the other groups, while at the formed a civilian volunteer group to the post, while other "teams" proceed• same time, retain its own separate and work with their officers in providing ed to the homes of troopers who could distinct identity. emergency services. They first sought not get their police cars on the road. INCERT is the statewide establish• to establish contact and rapport with These troopers used the now fully ment of a giant spiderweb of people, various citizens' band (CB) radio clubs manned four-wheel drive vehicles to communications, and transportation di• which could perform an "eyes and answer calls given them on the 2-meter rected toward reacting to and resolving ears" service in reporting traffic prob• band radio by the volunteers at the emergency or situational problems that lems. This original contact with the CB post, allowing them to provide police may arise. It is a citizen/police connec• clubs brought forth individuals repre• services that might otherwise have tion to be activated locally or throughout senting other volunteer groups who been impossible to provide. the State, when and where the services wanted to participate. The result was After consulting with the depart• offered by the various citizen volunteer ment's executive staff and reviewing organizations involved are needed. the progress made at our test district, it was decided to expand the program statewide. The objective was to orga• nize and coordinate the activities of CB

14 I FBI law Enforcement Bulletin ______In terms of structure, INCERT is a The proposal to incorporate was ment's chief communications engineer, civilian organization whose members presented to representatives of several also represents the State police on the interface with State and local govern• of the civilian organizations already par• corporate board of directors. The IN• mental entities. Initially, State police ticipating at the local level. These civil• CERT State coordinator, located at gen• personnel provided the administrative ian organizations, all having statewide eral headquarters, functions within the leadership for the operational activities group affiliations, are now represented operations section of the Enforcement conducted at the local level. Later, in an on the INCERT Board of Directors. The Division. The department's Executive effort to further the organizational proc• present board consists of representa• Division provides any necessary legal ess and to enhance and solidify the tives from the Indiana Volunteer Fire• services required and responds to any development of the INCERT program as men's Association, the Indiana REACT liability considerations. a true civilian entity, the program was Council, the American Radio Relay incorporated under the laws of the State League of Indiana, the National Four• Emergency Operations Centers as a nonprofit corporation with a board Wheel Vehicle Association, the Indiana Administratively, the Indiana State of directors. This action served the dual Wing of the Civil Air Patrol, the Indiana Police is broken down into five geo• purpose of promoting the desired unity Snowmobile Association, the State Of• graphic "areas" in the field. In each of in volunteer/governmental services for fice of Civil Defense and Emergency these areas, a trooper has been desig• the citizens and allowed the organiza• Management, and two persons from the nated as the INCERT coordinator. The tion to be in a position to accept legally Indiana State Police. coordinator, part of the area command offers of support and assistance in State police department personnel staff, is responsible for organizing and terms of materials and financing of serve as a catalyst in providing the coordinating INCERT activities in his INCERT operations. necessary coordination for communica• area. In most cases, each area is admin• tion between the administrative and istratively responsible for four districts. operational levels of the program. The At the district level, troopers and com• department's deputy superintendent for munications officers are selected, (gen• field operations serves as the program erally one per county, and a district may director. He, along with the depart• have as many as eight counties) to

------______September 1982 /15 "Citizen volunteers are not police officers and should not exhibit any actions that would lead the general public to believe otherwise."

function as county INCERT liaison offi• governmental and civilian organizations erally referred to the EOC's for action. cers. These officers, in addition to their can meet. It is necessary that representatives regular duties, have the added responsi• The three primary requirements to from local law enforcement and other bility of being the liaison between district be met in choosing an EOC site are government agencies be alongside the personnel, other law enforcement orga• geographic location, availability to all trooper liaison officer to assist in the nizations, local governmental agencies, involved groups, and suitable communi• coordination and direction of INCERT and the participating citizen groups. cations facilities already established or activities. Ideally, the offices of the Typically, these officers, along with the lending themselves to the placement of county civil defense, sheriff, local po• area INCERT coordinators, have been all necessary systems. Emergency elec• lice, Red Cross, and perhaps the may• instrumental in locating and establishing trical power and extra telephone facili• or and/or county council should be county emergency operations centers ties should also be available. represented. Representatives from (EOC's) from which county INCERT Communication links should be estab• these offices, plus representatives activities are coordinated when activat• lished from all EOC's to their respective from each of the civilian organizations, ed. EOC's were developed to alleviate State police districts and other response generally meet once a month, or as the lack of coordination between agen• agencies via CB and amateur radio needed, to plan future service activities cies that existed during the blizzard of equipment, which is usually donated to and prepare for possible emergency 1978. INCERT for use in the EOC's by the situations. There is at least one EOC in each volunteer organizations or business and Identification cards are issued to all county. It is usually located in the local industry. During times of emergency, the participating citizens and a master list of police department, sheriff's office, civil media services in the area advise citi• INCERT identification numbers is main• defense building, or volunteer fire de• zens to direct their requests for assist• tained. Each volunteer is assigned a partment, although it could be any place ance to the EOC's. Requests received different identification number which re• where representatives of the various by the response agencies are also gen• mains his as long as he remains in good standing within his club/organization and conforms to the criteria established by the board of directors and the bylaws 'INCERT' ORGANIZATIONAL CHART of the corporation. An identifying symbol _ I .. Po..... c..__ ...... _ ...._, ,.,. I'"~ I! of participation in INCERT, such as a

INDIANA STATE POLICE "CORPORATE BOARD" STATE LIAISON AGENCIES uniform logo on an armband, a hat GHO "..u.• t: I El I =- =t ~ I §7. I E. I ~ 1 patch, or a shield on their clothing or =-~-~ •-I =-I .. E. I_I=I=:I=I=- g;'-i vehicle, indicates to the general public that they are participating in an INCERT -•~-- \.. -• "/~~ ~t~ operation under the authority of the Indiana State Police or other cooperat• 1 ing law enforcement agencies. AREA G H O', (S) I Citizen volunteers are not police I officers and should not exhibit any ac• Ej-~- ~-1 I tions that would lead the general public @ to believe otherwise. In many instances, though, they have performed traffic con• t : I trol or communication functions. In other DISTRICT G H O:, (19) I I instances, citizen volunteers have as• I -,- V sisted in closing roads in the interest of _--..r~ __ ~ t -• ' INCERT" COUNCILS --~ motorist safety. '• ...... ' H om~ Rul~' Or"nlutkwlt , Or81nlzrd Clvililln (Vo l unt~er) Or,lnlution, ~_u, -•... ~ .....-• := I ...... &'" .. := -• ---::-:.. f - -:: - ::- --» -..... - ? I - t ~ ------, ------I

161 FBI Law Enforcement Bulletin ______As a new group enters the program, On major holiday weekends, IN• There are many different types of an INCEAT organizational survey is CEAT volunteers set up "travelers aid service INCEAT volunteers are able to completed. This survey lists the name of stations" at selected State rest areas in perform. These services can take many the group, the State police district and conjunction with the Indiana State High• forms-emergency service, situation county of origin, three " key contact" way Department and the Department of service, human service, and community personnel within the group, individual Tourism. Coffee, cookies, and soft service. Volunteers are probably law names and social security numbers, drinks are available to travelers as a enforcement's greatest resource and INCEAT identification numbers as• safety wake-up. Those volunteers in• are certainly the most cost-effective. signed each new member, and the volved with amateur and CB radios INCEAT is the vehicle that has various expertise and equipment that is establish their radio "net" at these sites coordinated the activities of these orga• available. This survey is completed in to assist motorists who have become nizations in the interests of public wel• duplicate, with the original being kept at separated from fellow travelers by send• fare. The flexibility of the program, the the appropriate area headquarters and ing out " attempts to locate." Many ama• number of volunteers participating (over a copy being kept at the district in which teur radio and CB volunteers have also 16,000), and the diversity of the volun• the new group is located. Updating such assisted with the Indianapolis 500 for teer services lend themselves to some• files allows a given area or district to the last 4 years in keeping motorists with thing as normal as a few volunteers determine what organizations are avail• CB and amateur capabilities aware of assisting with a local search-and-rescue able to assist law enforcement in their traffic and crowd control conditions on mission to something of the magnitude respective regions of the State. the way to the track. of the blizzard of 1978. Since its conception in early 1978, Volunteers have performed an The potential effectiveness of the INCEAT volunteers have performed "eyes and ears" service by witnessing INCEAT program is unlimited in scope. many valuable services while working and reporting criminal offenses. In many There is every reason to believe that it with Indiana enforcement agencies and instances, these reports were made will continue to play a very active and other governmental entities around the directly to our State police posts via vital part in responding to conditional State. They have been activated numer• amateur and CB radios. "Pumpkin and/or emergency situations that may ous times to assist in severe weather patrols" have also been extremely suc• strike our State. It may also serve as a emergencies, such as tornadoes when cessful the last 4 years in reducing model for the rest of the Nation. they have assisted in securing areas vandalism from highway overpasses FBI where homes and articles have been during Halloween. This again is a report• scattered. During flood emergencies, ing service only. The volunteers do not volunteers have loaded sandbags and stop citizens or vehicles engaged in assisted in the evacuation of victims suspicious activity-they simply report driven from their homes. In the winter it. The mere presence of several vehi• months when heavy snows have re• cles with antennas in a neighborhood stricted movement on some of the major can act as a deterrent to criminal highways, the volunteers have rescued activity. stranded motorists, taking them to shel• There have been several instances ters. They have delivered food and in which, under the close guidance and medicine and have transported emer• direction of sworn officers, INCEAT gency hospital and media personnel so volunteers have assisted in criminal their vital services could be maintained. investigations. Volunteers assist by They have also participated in certain searching for miSSing persons, stolen activities geared toward promoting traf• property, and evidence at crime fic safety and crime prevention. scenes. At one homicide investigation, valuable evidence was located by IN• CEAT personnel using their own metal detectors.

----______September 1982 /17 The Police Role in the Case of the Mentally Retarded Child

By MARTIN A. GREENBERG, J.D. Assistant Professor of Law Enforcement Arkansas State University State University, Ark. and ELLEN c. WERTLlEB, Ph.D. Assistant Director Special Learning Center College of the Dzarks Clarksville, Ark.

18/ FBI Law Enforcement Bulletin ______Evidence for the existence of When a troublesome incident re• mental retardation has been dated as garding the conduct of a mentally re• far back as prehistoric times. However, tarded child occurs, police officers can the recognition, understanding, and expect to be the first person called treatment of mentally retarded individ• upon to help resolve the problem. uals has slowly evolved through mil• While mentally retarded persons repre• lions of years. 1 History demonstrates sent approximately 3 percent of the that a better understanding of these people in the United States, "such per• individuals leads to more humane sons reportedly comprise about ten treatment. percent of the population which is con• Dr. Greenberg Since World War II , there has fined in jails and prisons"; 2 and " an been a progressive deemphasis in the overwhelming majority of adult retard• need to institutionalize retarded chil• ed offenders experience their first diffi• dren, thus increasing the number of culty with the law as juveniles." 3 families who rear these children in their The police mission in juvenile work homes. In conjunction with this trend, includes rendering service to the men• two recent statutes have mandated tally retarded individual. The police considerable procedural and substan• officer's effectiveness is principally a tive protections for children in need of function of two factors-the quality of special education programs and serv• police training and a sincere concern ices. According to Section 504 of the for retarded individuals and their fami• Rehabilitation Act of 1973, physical ac• lies. An array of manpower is needed cess to public buildings and grounds to prevent retardation and to cope with must be made available by agencies it when it does occur. Police can strate• receiving any type of Federal assist• gically aid in these endeavors through ance; the Education of All Handi• an understanding of the problems as• capped Children Act of 1975 requires sociated with mental retardation and a that federally aided school systems willingness to implement the laws that provide every handicapped child with a entitle all handicapped children to cer• free public education. These regula• tain benefits and procedural due proc• Dr. Wertlieb tions provide more of an opportunity ess protections. for retarded children to interact with Today's police officer is required the rest of the public sector than ever to enforce the law in situations that are before. Consequently, police person• more and more complex. Such compli• nel have an increased likelihood of cations arise whenever a mentally re• making contact with these children. tarded person violates the law. However, low intelligence alone does not play an important role in causing delinquency, unless this factor com• bines with other factors such as poor home environment, mental disease, al• coholism, parental or guardian discord, low socioeconomic status, or commu• nity rejection toward children.

------______September 1982 /19 "History demonstrates that a better understanding of these individuals leads to more humane treatment."

In 1976, President Gerald Ford Moreover, they are often quickly sen• intellectual functioning. The tests are stated that "the treatment we have tenced and required to serve full terms. considered to be biased in favor of the accorded mentally retarded and other Law enforcement personnel can pre• white middle class population. Conse• handicapped members of our society vent mentally retarded children from quently, the administration and inter• tests our success and challenges our becoming convicts by being familiar pretation of these tests by a person ideals. Only recently we have sought to with the symptoms of mental retarda• who is not sufficiently skilled can result assure the right of mentally retarded tion and helping these individuals get in tragic misdiagnoses. If a child's intel• citizens to develop their full potential, the resources they need. lectual functioning is found to be sig• to share in the bounty of our land and nificantly below-average, he or she to receive equal justice under the Identification might be described as having mild, law."4 There are many problems associ• moderate, severe, or profound retarda• In 1978, the Report of the Liaison ated with identifying an individual with tion based on the level of deficiency. Task Panel on Mental Retardation sub• mental retardation. In fact, the precise The police officer is most likely to mitted to the President's Commission definition of mental retardation differs come into contact with mildly retarded on Mental Health urged that all "help• among the various experts in the field. individuals since they comprise the giving persons who are in frequent Whereas some experts emphasize bulk of this special population. contact with mentally retarded people causation, others emphasize perform• Those children diagnosed as men• . . . be offered training and supportive ance level. In addition, the definition is tally retarded are supposed to be given services in basic mental health skills to colored by a given society's sociocul• services within the public school sys• better -help mentally retarded people tural standards. tem. However, the harsh reality is that cope with their problems of living." 5 The most widely used definition in many of these children are not ade• The importance of the police role the United States is that given by the quately served.1 Implications surround• cannot be overemphasized because American Association on Mental Defi• ing the diagnosis of mental retardation their contacts are often the first steps ciency: in court cases becomes increasingly in the community's treatment system "Mental retardation refers to problematic. While the testimony of the for dealing with the retarded offender. significantly subaverage general police as well as various specialists, Police come into contact with the re• intellectual functioning existing such as psychologists and educators, tarded child for the same reasons they concurrently with deficits in adaptive is considered, the disposition of a case come into contact with the average behavior (Le., ability to care for is often governed by the available child. The child might be lost, con• oneself and get along with others in treatment facilities. Consequently, a fused, or in need of special help. The a manner appropriate for one's age), mentally retarded individual might be child might be the victim or suspected and manifested during the placed in an institution for the mentally offender of a crime. Mentally retarded development period (Le., from 1-18 ill simply because a more appropriate offenders frequently repeat their years old)." 6 facility has no available space. crimes. They are often easily arrested Given the problems associated because they make no attempt to run with the definition of mental retarda• Characteristics or disguise what they have done. tion, one, then, is confronted with the Before police officers can know problem of identifying those individuals how to handle cases involving mentally who are mentally retarded. There is a retarded children, they must be familiar great deal of controversy concerning with the characteristics of mental retar• the diagnostic tests used to determine dation. However, precise characteris• tics are difficult to present since the label covers a broad range of ability deficits from mild to profound retarda• tion. In addition, the retarded child is like any other child with his or her individual traits. Whereas some retard• ed persons have physical abnormal i•

20 I FBI Law Enforcement Bulletin ties, others have the physical Special Factors Affecting All of these children will develop ppearance of the average person. Personality Development their own means of coping with the It is important to emphasize that Up until this point, no question has frustrations encountered due to their ental retardation is not synonymous been raised as to the need to identify slowness. Some children may become ith mental illness. It is true that some and label individuals as mentally re• timid and shy, while others may be• etarded individuals might develop tarded. In fact, the present article is come very hostile and aggressive. The ental illness, but similarly, some peo• based on the premise that an accurate means with which the parents of these Ie in the average population might picture of an individual will aid the po• children cope also varies. Unfortunate• evelop this problem. lice officer in making appropriate dis• ly, some of these parents may resort to The following list of characteristics cretionary decisions concerning that punishing themselves or victimizing ssociated with mentally retarded chil• individual. Such an understanding can• their children. In fact, statistics indicate ren is necessarily broad in scope. not be reached without first labeling that the child who is handicapped is owever, it can provide the police offi• the person. Labeling also enables more likely to be abused than the child s er with a general understanding of agencies to obtain funds and establish who is not handicapped. his special population. appropriate programs. However, these Causes 1) Retarded children often have gains do not come without cost. The difficulty in expressing themselves labeled children are viewed as different Mental retardation can be caused verbally. They may also have from the average population. In es• by genetic and/or environmental fac• difficulty in understanding what they sence, they can be considered as tors. Those cases which are genetical• are told, especially when the members of a minority group. As with ly caused are often associated with a sentences are long and express other minority groups, they may be specific syndrome (Le ., group of char• complex ideas. subject to prejudice and are likely to be acteristics). Fortunately, our advanced 2) Retarded individuals may have rejected. It is unlikely that they receive medical technology has made it possi• difficulty in making judgments. They positive feedback on many occasions. ble to oftentimes determine a couple's may not be able to foresee the The difficulties encountered as a result risk of producing a child with such a consequences of their actions. of their minority group status may con• syndrome. Consequently, it may be very easy tribute to feelings of insecurity and low The most common genetic cause for them to fall victim to a criminal's self-worth. There is an additional dan• of moderate to severe mental retarda• schemes. ger that the label will lower teacher and tion is Down's syndrome. This ab• 3) These children may not be able parent expectations. While it is impor• normality was formerly called " Mongol• to concentrate on anyone task for a tant to maintain realistic expectations ism" because of the characteristic long period of time. In addition, they so as not to overly frustrate the person, slanting eyes of the affected individ• may be distracted from a task very demands must be made on these chil• uals. However, the resemblance to the easily. dren so that they can develop to their Mongoloid people is slight; therefore, 4) Retarded children may have fullest potentials. this latter term was dropped because difficulty in remembering what they of the negative connotation it brought have seen or events that have just to the Mongoloid race. 9 Another disor• occurred. der frequently heard about is Phenylke• 5) Physical abnormalities are tonuria (PKU). It is a disorder in common among moderately, metabolism that can lead to mental severely, and profoundly retarded retardation if not detected and treated children. However, such through a special diet begun shortly abnormalities are uncommon among after birth. 10 the mildly retarded-these children There are a variety of other abnor• look "normal." malities linked to the sex of the individ• ual. For example, Turner's syndrome can only be found among females. It is

September 1982 / 21 "The importance of the police role cannot be overemphasized because their contacts are often the first steps in the community's treatment system for dealing with the retarded offender." . only sometimes associated with men• Some hazards to the developing child In conjunction with the trend to tal retardation. Individuals afflicted with include severe head injury, poisoning, seek diversion opportunities, a Federal this abnormality have difficulties in and lack of oxygen from delayed re• mandate has been passed to deinstitu• space/form perception-a problem susitation. In addition, specific infec• tionalize status offenders such as which becomes quite apparent when tions, such as meningitis, can be the runaways or truants. The use of special faced with the task of reading a precipitant of mental retardation. Fac• group home facilities or short term fos• map.11 In contrast to Turner's syn• tors associated with psychosocial dis• ter homes may be appropriate alterna• drome, Klinefelter's syndrome can only advantage also place the developing tives in the case of mentally retarded be found among males. It, also, is not child in danger. These could include children. Departmental rules governing always associated with mental retarda• inadequate nutrition, low achievement the questioning, searching, and "ar• tion. Although this syndrome has motivation, overcrowded home, inap• resting" of juveniles differ among the sometimes been associated with crimi• propriate school instruction, instability various jurisdictions. However, some nal records involving sexual offenses of the parents, poor medical care, and specific generalizations can be drawn. and arson, such behavior is likely to be poor child rearing practices. The major premise held at every s\age caused by the individual's immaturity of police and court processing is that rather than any "criminal personality." 12 The Retarded Child and the particular action is "fundamentally The group of genetically abnormal the Juvenile Justice System fair," and consequently, withstands the males labeled as XYY males do not Recognizing the immaturity of constitutional test of affording the indi• display any distinct group of character• young people, the policy of family vidual his rights. As with the average istics. They mayor may not be mental• courts has been to consider the antiso• child, care must be exercised by the ly retarded. There has been much cial acts of average children as behav• police and court attaches in ascertain• controversy concerning the criminal ior problems rather than as criminal ing the voluntariness of admissions of tendencies of these individuals. Re• behavior. Mentally retarded children involvement or plea statements, inas• search has indicated that XYY male should certainly be subject to the same much as some mentally retarded chil• prisoners have family histories similar treatment philosophy. Police are en• dren may be desirous of pleasing to the typical prisoner.13 However, a couraged to use discretion in referring authority figures or may acquiesce to French study conducted with non• cases to family court based on the forms of coercion more readily than criminals indicated that XYY males principle that the home is usually the other persons. The same care must be could be more easily provoked to dis• best place to rear a child. However, exercised when receiving the juvenile's play aggression in frustrating situations when it seems clear that the parents consent to search. The child may as compared to those males without are unable to cope with a child's prob• waive his rights without actually com• such a genetic abnormality.14 lem, referral can be made to local prehending what has occurred. The Unlike genetic conditions, environ• youth-oriented social agencies. Men• presence of counselor a parent may mental factors associated with mental tally retarded children are especially be very important in order to avoid retardation are more controllable. deserving of this diversion opportunity such an incident.15 Without this assist• These factors are potentially hazard• prior to court referral. ance, the police officer is faced with ous to the fetus in utero as well as to the very difficult task of judging the the developing child. The unborn child retarded child's level of comprehen• is especially at risk of being retarded sion. if a pregnant woman is undernour• ished, exposed to radiation, or ingests specific drugs. Infections such as ru• bella, chicken pox, and syphillis in the expectant woman will also raise the risk of retardation. In addition, nonin• fectious conditions, such as diabetes, will place the unborn infant at risk.

22 I FBI Law Enforcement Bulletin Although the Supreme Court has cable to cases involving civil commit• Public statements are often made not yet held that the retention of an ment of a mentally retarded person. In to communicate a particular minority advisory counsel for mentally retarded addition to being entitled to a hearing, group's plight. In 1972, the United Na• accused persons is required at every such an individual is entitled to counsel tion's Declaration on the Rights of stage in police and court processing, it and adequate notice to prepare for the Mentally Retarded Persons was adopt• would appear to be appropriate. In ad• hearing. The person is also entitled to ed to make the public aware of the dition, some retarded individuals might be present at the hearing and to put on rights of mentally retarded persons. Of need interpreters or aides similar to a defense.18 special interest, it was declared that those required by deaf persons or for• Historically, the law has reflected the mentally retarded person is entitled eign language clients. the desire to protect the young from ". . . to the maximum degree of feasi• Without the appropriate accom• the possible results of their own imma• bility, the same rights as other human modations, a retarded child is clearly turity. Consequently, there are many beings." The mentally retarded person handicapped if he becomes a case in restrictions on the activities of all chil• is entitled ". . . to proper medical care the juvenile justice system. In fact, the dren under the age of 18. For example, and physical therapy and to such edu• 1976 National Task Force on Juvenile all children are bound by the will of cation, training, rehabilitation and guid• Justice and Delinquency Prevention their parents concerning where and ance as will enable him to develop his recommended that after the filing of a how to live. In addition, they are re• ability and maximum potentiaL" The delinquency petition, the family court quired to get their parents' consent mentally retarded person is entitled should hold a hearing when there is before marrying or learning how to ". . . to protection from exploitation, evidence that the juvenile may be men• drive. Along with these restrictions, abuse and degrading treatment." And tally retarded.16 Civil commitment pro• children are entitled to such rights as ". . . if care in an institution becomes ceedings could then be initiated. This support and education. necessary, it should be provided in places the mentally retarded person in While the average child looks for• surroundings and other circumstances the tenuous position of possibly being ward to broader rights upon assuming as close as possible to those of normal indefinitely institutionalized if extreme the age of majority, the retarded child's life." caution is not taken-a possibility future rights may be in doubt. For ex• The mere statement of rights which exists simply because the per• ample, the areas of marrying, raising a which are deserved is often not son is mentally retarded. However, family, entering into contracts, suing, enough. Consequently, laws are often such an action would be in violation of holding office, voting, and holding a passed to prevent an infringement of the principle of the presumption of in• job are controversial with regard to these rights. Two laws which are aimed nocence and the right to trial. In this the mentally retarded population. How• at safeguarding the rights of mentally regard, the Supreme Court ruled in the ever, the law provides that such rights retarded children are Public Law (P.L.) case of Jackson v. Indiana that indefi• cannot be interfered with unless a 94-142, the Education for All Handi• nite commitment to a mental institution test of "compelling justification" is capped Children Act and Section 504 could not follow automatically from a satisfied. 19 of P.L. 93-112, the Vocational Reha• finding of unfitness to stand triaL17 bilitation Act Amendments of 1973. P.L. 94-142 assures the availability of The Retarded Child and the Civil a free, appropriate education for all Law handicapped children between the We have stated that the mentally ages of 3 and 21 at no cost to parents retarded person may be unjustly com• or guardians. However, this mandate mitted to an institution if caution is not exercised. However, constitutional civil law has been interpreted in a manner so as to prevent such a travesty from occurring. The concepts of basic due process and equal protection are appli•

September 1982 I 23 "Before police officers can know how to handle cases involving mentally retarded children, they must be familiar with the characteristics of mental retardation." does not apply to children within the The following techniques are also 5) Retarded children should be age ranges of 3 to 5 and 18 to 21, if helpful in this regard: given the same respect as other such requirement is inconsistent with 1) A positive and direct response to children. They should not be treated State law. In order to ensure appropri• each subject will enhance the overall with ridicule or pity. In addition, they ate education, the law mandates non• ability to cope successfully with the should not be treated as if they were discriminatory testing and evaluation, mentally retarded child. An officer not present when a third party is the maintenance of an individualized can best prepare himself for being consulted. education program for all handicapped undertaking such a response 6) Expect the mentally retarded children, consultation with parent or through an understanding and individual to act in a manner which guardian, and educational placement appreciation of the difficulties faced would be more appropriate to of the child in the "least restrictive" by the retarded child. someone younger than his age, such environment.2o It is assured that each of 2) The police officer should be very as sudden temper tantrums, or the these requirements are carried out with clear and specific in any directions refusal to respond because of fear or complete procedural safeguards. given. For example, if the child is told shyness. The level of immaturity will Section 504 is much broader in not to display certain behavior on a depend upon the degree of scope. It is a basic civil rights statute street corner, the retarded child retardation. which prohibits discrimination against might go to another street corner 7) When a police officer must make the handicapped by educational or and display the same behavior if it is contact with the child's parents or noneducational (e.g. , employment, not clearly explained that the guardians, he should not hold any health care, social services) programs behavior is not appropriate at any preconceived notions as to the type receiving any type of Federal assist• public location. of care given the child. The parents ance. Such issues as accessibility to 3) Simple language should be used should be approached in a positive buildings and grounds are covered un• when talking to the retarded child. In and direct manner regarding the der this statute. addition, the child should be asked specific incident. When appropriate, These regulations are highlights of to explain what was just said. the officer should provide the the various regulations that apply to Although the child might respond in parents with the names of local the mentally retarded child on a nation• the affirmative when asked if agencies that provide supportive al scope. The police officer should also everything was understood, this services to the retarded and their be aware of the local statutes which might not be the case-he might families. are applicable only in his State. respond with the word "yes" to almost anything that is asked. Techniques for Handling Mentally 4) Since retarded children often Retarded Children have difficulty in expressing It is essential that police officers themselves verbally, insistence on be equipped with the knowledge of such a response might be very local, and in some cases, national re• frustrating and frightening. sources for the proper referral and dis• Consequently, the use of visual aids, position of cases regarding mentally such as pictures, might be very retarded children. In addition, there are helpful in explaining things, as well published materials that can give po• as in obtaining responses. lice officers further inSight into mental retardation and consequently aid in their future interactions with this spe• cial population.

24 / FBI law Enforcement Bulletin Conclusion More importantly, we must cease look- Police officers are charged with ing with derision at those in a different the control of juvenile delinquency. At cultural milieu. 22 FBI times, they will encounter youngsters with special conditions. If such an of- fender is to be helped and the ends of justice served, police officers must un- Footnotes derstand the nature of the problem. By 1 See R.C. Scheerenberger, A History of Mental knowing some of the characteristics Retardation (Baltimore: Brookes Publishing Co., 1982). 2 A. Talent and R. Kelgord, " The "",ntally Retarded and causes of mental retardation, as Probationer," Federal Probation, vol. 39, No. 3, 1975, well as the laws involving the retarded p. 39. 'Ibid, p. 41 . individual's basic civil rights, future en- • M. Kindred, J. Cohen, D. Penrod, and T. Shaffer, The Mentally Retarded Citizen and the Law (New York: The counters will be made easier. It is im- Free Press, 1976), p. iii. portant 10 stress that these individuals • President's Commission on Mental Health, Report of the Liaison Task Panel on Mental Retardation: Volume IV have the same needs as other individ- (Washington, D.C.: U.S. Government Printing Office, uals. They have pride and need to feel 1978), p. 2011. • E. Grossman, ed., Manual on Terminology and a sense of worth and human dignity. Classification in Mental Retardation (Washington, D.C.: However, due to their limited ability to American Association on Mental Deficiency, 1973). p.11 . 7 See Dena Kleiman, " Many Disabled Still Not Placed cope in some situations, retarded indi- by City Schools," New York Times, August 31 , 1981 , pp. 1 and 010. viduals are often among the citizens • M. Soeffing, "Abused Children are Exceptional most in need of a police officer's serv- Children," Exceptional Children, 42, 1975, pp. 126­133. • N. Robinson and H. Robinson, The Mentally ices. Retarded Child (New York: McGraw·Hill, 1976), pp. 77­88. In the past, the mentally retarded 10 Ibid., pp. 97­100. " Ibid., pp. 90­92. person has not been "very well cared " Ibid., p. 92. for by mental health programs, and 13 Ibid., pp. 92­93. 1. B. Noel, J. Duport, D. Revel, I. Dussuyer, and B. even less so by the criminal justice Quack, "The XYV Syndrome: Reality or Myth?" Ciinicel Genetics, 5, 1974, pp. 387­394. 21 system." These individuals have often " See In re Thompson, 241 NW. 2d 2 (1976). been shuttled back and forth between I. See National Advisory Committee on Criminal Justice Standards and Goals, Task Force Report on agencies sharing overlapping jurisdic- Juvenile Justice and Delinquency Prevention (Washington, tions. However, the police can begin to D.C.: U.S. Government Printing{)ffice, 1976). 17 See In re Gault, 387 U.S. 1 (1967) for the rights of break this cycle through insight and the juveniles in delinquency proceedings. use of the most effective response for I. See Lessardv. Schmidt, 349 F. Supp. 1078 (1972). "Kindred, et aI., supra note 4. a given situation. The result will be a 20 See Section 612 (5) (B) of this Act. savings of time for the police officer, " l. Radelet, The Police and the Community. 3d ed. (Encino, Calif.: Glencoe, 1980), p. 388. fewer taxes for the community, and 22 B. Blatt, "Some Persistently Recurring Assumptions Concerning Education of the Mentally Retarded," in justice for the mentally retarded citizen. Mental Retardation: Readings and Resources, ed. J. Mentally retarded children do not Rothstein, (New York: Holt, Rinehar1 and Winston, 1971), have to become delinquents, nor can pp. 44­45. we explain delinquency as a manifesta- tion of the retardation. It is not surpris- ing that some of these children become delinquents; it is amazing that more do not. Society must recognize the need for psychiatric and social services, realistic education, and voca- tional counseling for all its citizens.

September 1982 / 25 REASONABLE EXPECTATION ____ ize the employee's conduct as a OF PRIVACY, THE search, the Government could argue that the employee­informant had the EMPLOYEE­INFORMANT, authority to consent to a search and seizure of the materials. Specifically, AND DOCUMENT the seventh circuit in Ziperstein stated: "We also note that the government's SEIZURES use of this evidence can be justified under the Fourth Amendment on a (CONCLUSION) consent theory." 25 The circuit court cited the U.S. Supreme Court's opinion in United States v. Matlock 26 as au- thority for the proposition that employ- ees, like the pharmacist in Ziperstein, By Part one of this article proposed a possess sufficient control over items MICHAEL CALLAHAN hypothetical situation in which an em- relating to their employment to consent ployee, identified as 8, acting as a to their search. Special Agent police informant, turned over to police In Matlock, the defendant was ar- Legal Counsel Division incriminating records which belonged rested by local police for robbery of a FBI Academy to A, her employer. Part one concluded federally insured bank. The police ob- Federal Bureau of Investigation that such conduct was lawful in that A tained consent from the defendant's Quantico, Va. gave 8 access to and control over the girlfriend to search a room he shared records by virtue of her employment with her. The district court suppressed duties. Since A voluntarily exposed the evidence, holding that the Govern- criminal conduct to 8 in the form of ment could not produce sufficient ad- Law enforcement officers of other documents, A retained no reasonable missible testimony that Matlock's than Federal jurisdiction who are expectation of privacy in the records paramour had actual authority to con- interested in any legal issue discussed with respect to 8. A was held to have sent to the search. A Federal appellate in this article should consult their legal misplaced his trust in 8 and to have court affirmed, and the Government adviser. Some police procedures ruled assumed the risk that 8 might provide appealed. The Supreme Court deter- permissible under Federal the records to the police. Inasmuch as mined that the issue in the case was constitutional law are of questionable A lacked a reasonable expectation of whether the evidence presented by the legality under State law or are not privacy, no search took place, and the United States was legally sufficient for permitted at all fourth amendment was not implicated the Court to conclude that the police by 8's conduct. obtained from a third party voluntary consent to search. The Court observed Search By Consent that the Government is not limited to A footnote in United States v. proving consent to search was ob- Ziperstein suggests that an alternative tained from the defendant, but may argument can be made by the Govern- show such consent was received from ment under circumstances wherein an a third party who possessed common employee­informant had access to and authority or other sufficient relationship control over certain incriminating docu- to the area or things searched. In a ments. In such cases, if a court were to footnote, the Court defined common reject the absence of reasonable ex- authority as: pectation of privacy analYSis set forth in part one of this article and character-

26 / FBI Law Enforcement Bulletin ". . . mutual use of the property by Third party consent, obtained from persons generally having joint one having common authority to fur• access or control for most purposes, nish it, has been used in several cases so that it is reasonable to recognize to justify the Government's coming into that any of the co-inhabitants has possession of incriminating records. In the right to permit the inspection in United States v. Antonelli Fireworks his own right and that the others CO.,29 Antonelli, president of the corpo• have assumed the risk that one of ration, was convicted of fraud in a U.S. their number might permit the district court. On appeal, he claimed common area to be searched." 27 that certain corporate records turned Spec~/AgentCa#ahan The Court found there was ample fac• over to the FBI by the corporation's tual basis for the police to conclude office manager, Simon, and later of• that the defendant's girlfriend had fered in evidence, should have been common authority over the room she suppressed, since Simon was not in a shared with the defendant, which gave position to consent on behalf of the her the ability to consent. She told the corporation. The appellate court af• police she shared the room with the firmed Antonelli's conviction, holding defendant and led the officers to the that the office manager was in sole room, shared a dresser in the room contr-ol of the office and the records with him, and identified clothing inside and clearly had the right to turn the the room as hers. The decisions of the records over to the FBI. lower courts were reversed. In United States v. Curtis,30 a cor• The rationale of Matlock was ap• porate office manager was held to plied in the employer-employee con• have sufficient authority to allow State text by the Supreme Judicial Court of officials to examine and take with them Massachusetts in Commonwealth v. corporate records which were ultimate• Grasso. 28 Grasso was suspected of ly instrumental in the conviction of a selling untaxed cigarettes in his store. high-level company officer for mail State authorities went to the store in an fraud. effort to confirm these suspicions. A A more recent Federal decision is clerk who was in control of the entire also instructive on this point. In United store permitted the officers to conduct States v. Allison,31 FBI Agents ap• a search after they informed him of the peared at the offices of the Laborers purpose of their visit. Untaxed ciga• International Union of North America, rettes were discovered behind the Local 1282, and were allowed to take store's counter which could not be with them certain union records which seen from the public area of the store. incriminated Allison, a union officer. Grasso was convicted of possession of The district court ordered the records untaxed cigarettes and appealed. The suppressed, holding that Greer, the court affirmed the conviction and found union's secretary-treasurer and re• that the store clerk had sufficient au• cords custodian, did not voluntarily thority to consent to the search. The court explained that the items seized were located in an area accessible to the clerk and under his control.

September t 982 / 27 "An employee­informant must have access to and control over the records and the place from which they are obtained in order to turn them over lawfully to the Government under either an absence of a reasonable expectation of privacy rationale or a consent theory." consent to the Government's taking of Consider altering the facts of the had common authority over the enve• the records. On appeal, the order was hypothetical. Suppose B's employment lope itself, but had no right of access to reversed. The appellate court deter• status is reduced and is limited to that its contents. mined that the search was conducted of a messenger. Assume that A hands Applying this conclusion to the hy• on the authority of the consenting par• B a closed briefcase with instructions pothetical case, if B had access to and ty, Greer, who was the person with to deliver same to a third party. B control over the records during busi• legal custody of the records. suspects that it contains incriminating ness hours, but after hours could ob• In the hypothetical situation, it documents. Could B lawfully open the tain them only from A's private office seems clear that B, the employee, closed briefcase and turn over the in• safe, such conduct would likely violate could lawfully turn over to police the criminating papers to the police or con• the fourth amendment. Nor could this documents which incriminate A, the sent to a police opening of the action be supported under a consent employer, either because A has no briefcase? analysis because, although B would expectation of privacy in the docu• A recent decision of a Federal have common authority over the docu• ments with respect to B or because B court in United States v. Humphrey 32 ments during regular working hours be• has sufficient common authority over considers this issue. In Humphrey, the cause of access and control, obtaining the documents and the place they are defendant furnished to an FBI inform• them from A's private office safe after stored to voluntarily consent to their ant a sealed envelope with instructions normal working hours would require B search or seizure by the Government. to deliver the envelope to certain indi• to enter an area not commonly con• viduals outside the United States. In• trolled, i.e., a place reserved for A's Access and Control Critical stead, the informant delivered the exclusive use. An employee-informant must have envelope to the FBI. It was opened access to and control over the records without a warrant. Evidence of espio• Plain View Seizures and the place from which they are nage was found and seized. The dis• Another argument that the Gov• obtained in order to turn them over trict court ruled such warrantless ernment might make to support B's lawfully to the Government under ei• conduct unlawful, in that the defendant taking of the incriminating documents ther an absence of a reasonable ex• had a reasonable expectation of priva• in the original hypothetical is based pectation of privacy rationale or a cy in the contents of a sealed envelope upon the " plain view" doctrine. The consent theory. Suppose, for example, and this interest continued even after plain view concept was examined by that the records are kept in a locked he furnished the envelope to the in• the Supreme Court in Coolidge v. New safe in A's office and B has access to formant for delivery. The court rejected Hampshire. 33 Reduced to its basic and control over them only during nor• the Government's consent argument terms, the plain view doctrine requires mal business hours. Suppose further by holding that the warrantless open• three conditions. First, the officer mak• that B enters A's office after business ing of the sealed envelope exceeded ing the plain view discovery must be hours and by means of a sophisticated the scope of the consent furnished to lawfully present in the place where the device is able to enter the safe surrep• the informant. The informant arguably evidence is discovered. Second, the titiously and take the documents. A's discovery of the evidence must be in• reasonable expectation of privacy with advertent. Finally, the item seized must respect to a safe in his own office be immediately apparent as evidence would likely defeat an assertion by the of a crime. The usefulness of this prin• Government that the fourth amend• ciple to support the legality of B's tak• ment was inapplicable. ing the documents in the original hypothetical is illustrated in United States v. Baldwin. 34 In Baldwin, Hoing, an undercover police officer, was hired by Baldwin to act as his chauffeur. The defendant subsequently allowed the officer to move into his home and occupy a

28 I FBI Law Enforcement Bulletin ______downstairs bedroom. Baldwin gave him Most courts confronted with the Cocaine was seized at this time and free access to all parts of the house, inadvertence problem since Coolidge Glassel was convicted. On appeal, he including his bedroom. While staying in have concluded that it is permissible argued that the entry of the other offi• the house, Hoing observed and seized for the police to seize an item in plain cers, in violation of a Federal knock two samples of white powder from a view even though they suspect, prior to and announce statute, tainted the sub• table top in Baldwin's bedroom. He entry, that it might be found in an area sequent seizure of the cocaine. In sup• found a third sample of the white pow• they intend to enter. However, if police port of this conclusion, he cited der while cleaning the interior of Bal• have probable cause to believe they Sabbath v. United States, 39 in which an dwin's car as part of his job as will find an item in a place they can informant was invited into the defend• chauffeur. Hoing seized the samples enter on other lawful grounds, a search ant's home and was present when because he suspected that the sub• warrant would be necessary, absent an Federal officers entered without com• stance observed was cocaine. A fourth emergency. Given the prior existence plying with the Federal announcement sample was seized from Baldwin's of probable cause, the plain view doc• statute. The Supreme Court concluded bedroom dresser drawer after Hoing trine would likely be inapplicable.37 In such entry was unlawful, and the evi• was instructed to bring cocaine from the hypothetical, a court could find that dence seized pursuant to it was de• the drawer to a nightclub. Baldwin was after B informed the police of her sus• clared inadmissible. In Glassel, the convicted of possession of cocaine. A picions regarding A and what the rec• appellate court rejected Glassel's ar• Federal appellate court rejected Bal• ords would disclose, probable cause gument and distinguished the Sabbath dwin's claim that he never consented as to the evidentiary nature of the case as follows: to the presence of a police spy in his records would exist. The inadvertent "In Sabbath, Jones (the informant) home. The court explained that Bal• discovery requirement could not be did not participate in the arrest or dwin's consent to the undercover offi• met. seizure, nor was he authorized to do cer's presence in his home and his Finally, there exists the issue of so. He was merely the defendant's unlimited access to the interior were whether an informant has the same unfaithful cohort whose temporary not in any way vitiated by the officer's authority as a law enforcement officer role as 'agent' involved nothing more failure to disclose his status as a law to make a plain view seizure. United than being a stool pigeon," 40 enforcement officer. The court justified States v. Glassel 38 is instructive on (emphasis added) the various seizures of the cocaine by this point. In Glassel, an undercover By contrast, the court explained that applying the plain view rationale. police officer and an informant were the undercover officer in Glassel was a Application of the plain view doc• invited into the defendant's home to full-time narcotics officer who had au• trine to the hypothetical is not without purchase narcotics. After the defend• thority to make arrests and seize evi• problems, however. Although only four ant displayed narcotics to the officer, dence. Since the undercover officer Justices adhered to the inadvertent the informant left, purportedly to obtain was already lawfully present and was discovery requirement announced in cash. Other officers then entered the in constructive possession of the co• Coolidge, that condition has since premises without knocking and an• caine at the time of entry by other been widely accepted as a necessary nouncing their purpose and authority. officers, the manner of entry was of no part of the plain view doctrine.35 How• legal consequence. The Glassel case ever, since Coolidge, there has been casts doubt on the authority of an in• disagreement in the lower courts over formant to make a plain view seizure. the meaning of the inadvertence re• quirement. The words of Justice Stew• art in Coolidge are instructive on this point: "This Court has never permitted the legitimation of a planned warrant• less seizure on plain view grounds." 36

September 1982 I 29 "Contemplated use of this (informant technique) should include consideration of whether Federal or State privacy laws may limit or prohibit its application."

Embezzlement and Lack of Intent thus any contemplated criminal action States may have similar statutes pro• In at least two recent cases which against 8 would take the form of an hibiting unauthorized dissemination of involved employees turning company embezzlement charge. As a general information in the possession of cer• records over to the Government, em• rule, in order to constitute embezzle• tain State agencies and private em• ployers have characterized the takings ment, there must be criminal intent. ployers as well. Consideration of the as thefts.41 This raises the question of Ordinarily, there can be no embezzle• investigative technique described in whether the employee-informant or the ment of property belonging to another this article must include an analysis of police officer directing the source can without a fraudulent intent.4S Such in• whether any Federal or local statute be criminally liable for the conduct. tent has been held essential even exists which might limit or prohibit its This article has already examined the though the statute defining the offense use. issue of whether an employee who has fails to declare it.46 In the hypothetical access to and control over documents case, 8's intent was limited to assisting Preference for a Search Warrant in connection with his employment vio• law enforcement in ferreting out crimi• Use of an informant to seize docu• lates the fourth amendment by making nal conduct, and 8 had no personal ments should be reserved for special those documents available to the po• intent to deprive A of his property situations. For example, where police lice upon request of an officer. A ma• fraudulently. Given the foregoing, the have strong suspicion but lack prob• jority of decisions supports the likelihood of there being a successful able cause, they might consider the proposition that no violation of the prosecution against 8 or the police procedure described herein. However, fourth amendment occurs in this situa• officer for embezzlement is remote. it should not be viewed as a routine tion. However, there remains the ques• alternative to a search warrant. The tion of whether a violation of applicable Federal­State Statutes May Bar Use warrant should be obtained unless larceny or embezzlement statutes has of Procedure there is a compelling need for law occurred. In 1978, the U.S. Congress en• enforcement to proceed without one. Embezzlement is generally taken acted into law the Right to Financial Use of an informant to acquire to be the fraudulent or felonious Privacy Act,47 which restricts the right some documents would be appropriate conversion of property which has right• of employees in certain institutions for the limited purpose of establishing fully come into possession of the con• covered by the act, such as banks, to probable cause to support issuance of verter.42 Embezzlement can occur turn over to Federal officers customer a search warrant for a larger volume of when the defendant has been entrust• records covered in the act, unless the incriminating records. This approach ed with the possession of the property officer had legitimate authority under also could be of assistance when po• in question.43 One who has mere cus• the act to obtain them. Similarly, other lice possess probable cause to seize tody of property, as distinguished from Federal statutes, such as the Federal only a limited amount of records pursu• legal possession, and feloniously ap• Privacy Act of 1974 48 and the Tax ant to a warrant but suspect the scope propriates the property to his own use Reform Act of 1976,49 might operate to of the crime to be much broader. Pre• is guilty of larceny. Possession suffi• restrict or eliminate use of the investi• mature execution of a search warrant cient for purposes of the distinction gative technique outlined in this article. in this instance could result in several between embezzlement and larceny undesirable consequences: may exist where the accused is given 1) Alerting suspects to the presence considerable control over the property of an informant in their midst, thus converted.44 In the hypothetical case, 8 prompting them to become more clearly had access to and control over circumspect and clandestine in their the incriminating documents by virtue illegal activity; of an employment relationship, and

30 I FBI Law Enforcement Bu"etin 2) Causing the removal or 2) An alternative argument can be Footnotes .5 Supra note 23. at 290. note 3. destruction of valuable evidence; made that the employee has common .. 415 U.S. 164 (1974). and authority over the incriminating rec- .7/d. at 171 . note 7. 21 375 Mass. 115, 375 N.E. 2d 706 (1978). 3) Placing the safety of the informant ords, sufficient to allow a con!:'ent to 21155 F.2d 631 (2d Cir. 1946). cert. denied, 329 U.S. in jeopardy. their seizure by police. 742 (1946). 30 537 F.2d 1091 (10th Cir. 1976). cert. denied, 429 Use of the informant technique will 3) A separate argument involves U.S. 962 (1976). "619 F.2d 1254 (8th Cir. 1980). allow police the lUxury of developing the authority of an employee­informant 32 456 F. Supp. 51 (E.D. Va. 1978), aH'd. on other the case with the assistance of a well- to make a plain view seizure. This argu- grounds, 629 F.2d 908 (4th Cir. 1980). 33 403 U.S. 443 (1971). placed source of information. It could ment has inherent problems, namely, 34 621 F.2d 251 (6th Cir. 1980), cart. denied, 68 result in penetration to the core of a the inadvertent discovery requirement L.Ed.2d 244 (1981). l5 Joseph R. Davis, "The Plain View Doctrine," FBI pervasive conspiracy and may well of the plain view doctrine and the ques- Law Enforcemenl Bulletin, vol. 48, No.1 0, October 1979. lead to the identification of well­insulat- tionable authority of an informant to 3tI Supra note 33, at 471 , note 27. " Supra note 35. ed conspirators and to the location of seize evidence in plain view. 38 488 F.2d 143 (9th Cir. 1973), cert. denied, 416 U.S. 941 (1974). additional important evidence. 4) Lawful use of this investigative ,. 391 U.S. 585 (1968). Finally, the decision to employ an tool presupposes that an employee- .. Supra note 38, at 145 . • , Supra note 23; Knoll Associales v. F. r.C , 397 F.2d informant for the purpose described informant has lawful access to and 530 (7th Cir. 1968). above will also be affected by the risk control over the records. If an employ- .. 26 Am.Jur.2d 549. 43 Id. at 552. of disclosing his identity at a future ee enters a safe within the exclusive "Id. at 554. legal proceeding. An informant who control of an employer to obtain the "Id. at 570. "Id. plays a critical role in the seizure of records, such conduct would likely vio- .712 U.S.C. Sees. 3401­3422 . .. 5 U.S.C. See. 552a. The Federal Privacy Act of evidence may be required to subse- late the fourth amendment. 1974 was enacted by Congress in order to protect the quently testify as to his role in an investi- 5) Successful prosecution of an privacy of individuals identified in information systems maintained by Federal agencies. The act regulates the 50 gation. informant or an officer for embezzle- collection, maintenance, use, and dissemination of ment is remote, since neither has the infonmation related to individuals by such agencies. '.26 U.S.C. See. 61030)(1). As part of this act, Summary requisite intent to commit the offense. Congress established a detailed procedure for Federal offICers to follow in obtaining tax return infonmation in 1) As a general rule, an employer 6) Contemplated use of this proce- nontax­related criminal investigations. has a reasonable expectation of priva- dure should include consideration of '" See Roviaro v. Uniled Siales, 353 U.S. 53 (1957). cy from direct warrantless police intru- whether Federal or State privacy laws sion into his business premises for the may limit or prohibit its application. purpose of searching for incriminating 7) This technique should be re- records. Ordinarily, police cannot use served for extraordinary cases and not an informant to accomplish what they used as a routine substitute for a themselves are prohibited from doing. search warrant. However, the result is different when 8) Because of the complex legal an employer has given to an employee issues associated with this procedure, access to and control over incriminat- officers should discuss its possible use ing records. The employer has no rea- with the prosecutor or police legal ad- sonable expectation of privacy with viser before adopting it as part of their respect to records he voluntarily ex- investigative strategy. rBI poses to the employee. The employer is held to have misplaced trust in the employee and to have assumed the risk that the employee might furnish the records to the police. In that event, no search takes place and the fourth amendment is inapplicable.

September 1982 / 31 RBY THE ~rB1 •~

Photographs taken 1979

Alphonse Carmine Persico Description Caution Alphonse Carmine Persico, also Age ...... 52, born December Persico has been known to carry a known as A. Persico, Alphonse 6, 1929, Brooklyn, weapon in the past and should be Persico, Alphonso Persico, Alley Boy N.Y. considered armed and dangerous. Persico, Alley Boy, Allie Boy Persico, Height ...... 6' to 6'2". Allie Boy, AI, and Ally Boy Weight ...... 215 pounds. Notify the FBI Build ...... Heavy. Any person having information Wanted for: Hair ...... Black gray. which might assist in locating this Extortionate Credit Transactions- Eyes ...... Brown. fugitive is requested to notify Bond Default Complexion ...... Olive. immediately the Director of the Federal Race ...... white. Bureau of Investigation, U.S. The Crime Nationality ...... American. Department of Justice, Washington, Persico is a reputed underboss of Occupations ...... Carpetlayer, legal D.C. 20535, or the Special Agent in an organized crime family in Brooklyn, clerk, president of Charge of the nearest FBI field office, N.Y. He is being sought for carpet installation the telephone number of which failure to appear for sentencing after firm, security appears on the first page of most local being convicted on multicounts of consultant. directories. violating the extortionate credit Scars & Marks ... . Burn scar on left transaction law. Persico has also been cheek; tattoo: "AL" Classification Data: previously convicted of assault and on right hand NCIC Classification: between thumb and contempt of court. 166313C005PI61141613 forefinger. A Federal warrant was issued on Fingerprint Classification: June 23, 1980, in the Eastern District Remarks ...... Persico has been 16 M 13 R 000 5 Ref: 13 of New York, charging Persico with convicted of murder, I 1 ROOO 2 extortionate credit transactions and assault, and failure to appear. contempt of court. Social Security 1.0. 4875 No. Used ...... 072­ 22­ 1415. FBI No ...... 263 729 A.

Right index fingerprint

32 / FBI Law Enforcement Bulletin

U. S. GOVERNMENT PRINTING OfFICE I 1962 0 - 376- 403 Change of ~ORCEMENT Address rBI Not an order form BULLETIN

Complete this form and return to: Name

Director Title Federal Bureau of Investigation Address Washington, D.C. 20535

City State Zip ...... Concealable Knife

This concealable knife was confis- cated during an investigation. The met- al knife is approximately 7 inches long with a blade length of approximately 3 V2 inches. It is carried in a plastic case and can be fastened to a person's calf or forearm. If carried on the forearm, the owner can hit a catch, allowing the knife to slide down the sleeve into his hand. (Submitted by the Department of the Army) U.S. Department of Justice Official Business Postage and Fees Paid Federal Bureau of Investigation Penalty for Private Use $300 Federal Bureau of Investigation ~ _ Address Correction Requested JUS-432 ~ .

U.S.MAIL Second Class ®

Washington, o.G. 20535

Questionable Pattern

Although this pattern has the gen• eral appearance of a tented arch, a close inspection discloses a sufficient recurve. Therefore, this impression is classified as a loop with two ridge counts. A reference search would be conducted in the tented arch group.