volume 68 number 5

ISSN 0014-5688 USPS 383-310

May 1999Volume 68Number 5

United StatesDepartment of Justice

Federal Bureau ofInvestigation

Washington, DC20535-0001

Louis J. FreehDirector

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Features

Departments

7 Focus on Technology Laser threats

Reexamining the Importanceof Firearms Investigations

By William J. Vizzard

Combating Check FraudBy Walter N. Hansen

The Ethics of Intentionally Deceiving the Media

By Michael E. Brooks

Search Incident to Arrest By Thomas D. Colbridge

1

10

Firearm investigations can become analternative route to capturing violentoffenders.

22

27

18 Police Practice Buffalo’s Alternative to 911

Check fraud is a pervasive crime thatcrosses jurisdictional boundaries andaffects individuals and corporationsalike.

Law enforcement administrators mustconsider both the practical objectivesand ethical obligations when decidingto deceive the media.

The Supreme Court has ruled Iowa’swarrantless search incident to citationexception to the Fourth Amendmentunconstitutional.

May 1999 / 1

istorically, most firearmlaws in the United Stateshave focused on prohibit-

minimum sentences for certain ca-reer criminals convicted in federalcourt of firearm possession.2 This“armed career criminal” statutenow mandates a minimum 15-yearincarceration for possession of anyfirearm by a person with three priorconvictions for violent or drug-traf-ficking crimes.3 Sentences canrange as high as life imprisonmentif the defendant’s record provesextensive.4

Some states have createdeven more severe sanctions. For

example, California now mandatesa sentence of 25 years to life for anyfelony conviction if the defendanthas two previous convictions for se-rious or violent crimes.5

Such draconian sentences forthe mere possession of a firearmmight, at first glance, seem out ofproportion to the offense and awaste of public resources. How-ever, an intensive survey of incar-cerated felons in 10 states con-cluded that approximately 20percent of the subjects surveyed

Reexamining the Importanceof Firearm InvestigationsBy WILLIAM J. VIZZARD, M.S.

Hing specific dangerous classes ofpersons, especially felons, from re-ceiving or possessing firearms.While these laws have advocateddenying these individuals access tofirearms, critics often complain thatthe laws have been somewhat inef-fective in accomplishing this task.1

However, in 1986, firearm vio-lations took on a new impetuswhen Congress mandated 15-year

© K.L. Morrison

2 / FBI Law Enforcement Bulletin

accounted for about 50 percent ofall crimes and most of the violentcrimes reported by the sample.6

This same group of subjects, de-scribed in the survey as firearmpredators, also reported habituallyacquiring, possessing, and carryingfirearms, which differentiated themfrom the majority of other felons.This subset of criminals apparentlyaccounts for a significant portion ofserious crime and presumably gen-erates a significant portion of thepolice workload. For example, onethird of active armed robbers in a St.Louis, Missouri, study reportedhaving committed 50 or more rob-beries and over half reported havingcommitted burglaries, assaults, andlarcenies.7 Thus, time spent devel-oping a firearm case for court mayprove more productive in terms ofimpacting public safety than con-ducting follow-up investigations onrobberies or assaults.8 Also, besidesimproving the quality of inves-tigation and trial preparation of

opportunistic seizures of firearmsfrom serious felons, police can ini-tiate proactive efforts at targetingspecific, high-risk offenders.

RECOGNIZINGTACTICAL ADVANTAGES

Many law enforcement agen-cies establish career offender unitsto arrest and prosecute active vio-lent offenders. Firearm statutes canhelp in such efforts. Offendersmaximize their sensitivity to sur-veillance and police observationimmediately before, during, and af-ter criminal activities. Thus, sub-jects who perennially possess orcarry firearms may prove vulner-able to arrest and prosecution forpossessing a firearm rather than fortheir more substantive crimes. Also,operations that seek to arrest sus-pects during, or immediately after,violent crimes require extensive re-sources and present a variety ofrisks. One of the most difficultdecisions for tactical commanders

remains whether to allow the crimeto take place and risk injury to thepublic or act before the crime oc-curs and risk forgoing prosecution.However, in cases involving peren-nial firearm carriers, commanderscan employ firearm laws to help re-duce both the operational complex-ity and the physical risk of suchproactive operations.

From a tactical perspective,firearm violations offer investiga-tors another advantage. Often, pro-active enforcement efforts againstcareer offenders require inside in-formation from a confidential infor-mant regarding the details of apending crime. Because only a fewindividuals know these details,acting on that information cancompromise the informant’s iden-tity. Thus, investigators find them-selves in a moral and professionaldilemma—to act and place the in-formant at risk or not act and allow acrime to occur. However, becausethey often know about offenderswho usually possess or carry fire-arms, investigators can use parolesearch authority or other means tomake a seizure and arrest, whichwill provide little or no evidencethat they had inside information.Then, when investigators must dis-close an informant’s existence, as ina search warrant affidavit, they canconceal the informant’s identity, ifnecessary.

Additionally, investigators canenhance the probability of obtain-ing a search warrant if they capital-ize on certain characteristics of fire-arms and reasons for theirpossession. Unlike many items, theutility of a firearm, unless it is beingheld as a commodity, depends uponready availability. Therefore,

“

”

...administratorsshould recognizeunlawful firearmpossession as aserious offense

and assign casesfor...follow-up

investigation....

A retired Bureau of Alcohol, Tobacco and Firearms special agent,Mr. Vizzard currently is an associate professor of criminal justiceat California State University in Sacramento, California.

May 1999 / 3

offenders usually keep firearms ontheir persons, in their vehicles, or intheir residences.9 Also, becausefirearms are durable, offenders gen-erally retain them for a long time.10

While Bureau of Alcohol, Tobaccoand Firearms (ATF) agents and in-vestigators who specialize in fire-arm investigations have capitalizedon these characteristics to obtainsearch warrants for firearms, otherinvestigators may not be as aware ofhow these characteristics can beused to expand both the scope andthe duration of probable cause. Forexample, if informants observe sus-pects in possession of firearms onseveral occasions but have not hadaccess to their residences, investi-gators can draw on their past experi-ence and logic to explain why prob-able cause exists for them to believethat the suspects store the firearmsat their residences. If the purpose ofa firearm is primarily self-defense,and ample scholarly and experien-tial evidence supports this assump-tion for repeat offenders,11 then itfollows that offenders will keeptheir weapons nearby. Moreover,research and investigative experi-ence support the idea that firearmpossession is a pattern behavior.When investigators can provide ad-equate documentation of such a pat-tern, they may convince a magis-trate that a “fair probability” existsthat the suspects currently possessfirearms on their persons or in theirvehicles or residences.12

Most experienced investigatorshave recognized this pattern of be-havior in subjects of their investiga-tions. In fact, most experienced of-ficers instinctively will search thearea around the bed for weaponsalmost immediately upon initiating

a search of a residence. However,translating this intuitive knowledgeinto a written affidavit that someonewithout the officer’s specializedknowledge and experience will un-derstand remains the challenge.First, investigators must becomeaware of such knowledge and thendocument it. By maintaining a

experiences and expertise to inter-pret the facts in the affidavit.

The broad discretion grantedpolice officers in firearm searchesillustrates the final tactical advan-tage of firearm violations. Becauseguns present a unique danger,courts have granted substantial lati-tude to officers during firearmsearches. For example, in Terry v.Ohio, the court allowed pat-downsfor weapons without probablecause.13

MAXIMIZING THEUSE OF FIREARM LAWS

How can officers maximize thepotential utility of firearm laws toimpact career offenders? First, theymust have access to statutes thatimpose significant incarceration onarmed career offenders. Federalstatutes apply throughout the coun-try and both ATF and the majorityof U.S. Attorneys have shown awillingness to adopt quality casesfor federal prosecution. State stat-utes, such as California’s threestrikes law, offer a less cumbersomeand potentially more effective alter-native. Police agencies in stateswithout effective statutes shouldcultivate a close cooperation withATF, while working on more effec-tive state laws. Also, officers shouldconsider both reactive and proac-tive strategies when employing fire-arm laws against career criminals.

Reactive StrategiesAt the organizational level, sev-

eral reactive strategies may help toenhance the use of firearm laws.First, administrators should recog-nize unlawful firearm possession asa serious offense and assign casesfor proper follow-up investigation

“...firearm violationstook on a newimpetus when

Congress mandated15-year minimumsentences for...

firearm possession.

”record of past experiences, investi-gators build a foundation of special-ized knowledge that they can trans-late into such statements as:

I have participated in theservice of over 100 searchwarrants for firearms and over200 parole searches. It hasbeen my experience thatindividuals engaged in crim-inal activity who possessfirearms do so primarily forpersonal protection. As aresult, they routinely retainthese firearms in places easilyaccessible to them, such ason their persons, in theirvehicles, and in their placesof residence.

Just as they do during narcoticsand stolen property investigations,officers can use their personal


“All officers...shouldinquire about

weapons possessedby known felons

when interviewinginformants or

witnesses.

”

and court preparation. Prosecutionscan fail for such basic oversights asnot checking for prior criminalrecords or obtaining proof of priorconvictions. Because officers maydetect armed career offenders in awide variety of circumstances, in-cluding disturbances and individu-als unlawfully carrying a firearm,all incidents involving firearmsshould include a criminal recordcheck of the individual in posses-sion of the firearm. Additionally,when possible, departments shouldform investigative task forces withATF, thus increasing expertise andresources at no cost to the agencies.Also, police departments cansupplement their own resources bytraining parole and probation offic-ers to alert investigators upon dis-covering a firearm in the possessionof a career offender. This coopera-tion allows police officers to re-spond and initiate a proper follow-up investigation of the scene and tointerview potential witnesses.

Moreover, proper training ofofficers proves critical to maximiz-ing the use of firearm laws. Patrolpersonnel must remember to focuson the prosecution of these crimi-nals, as well as their apprehension.Because new technologies have in-creased the probability of obtainingusable latent prints from firearms,both recruit academies and re-fresher training programs shouldemphasize the proper handling andpacking of all firearms. Managersshould encourage patrol officers toverify identities and check criminalrecords for all individuals found inpossession of firearms. Even whensuspects are not known felons, of-ficers should inquire about thecircumstances surrounding firearm

informants or witnesses. This pro-cedure proves most effective whenadministrators assign officers theresponsibility of investigating fire-arm violations and train them in ob-taining firearm search warrants.

Administrators also can capital-ize on the unique nature of firearmsto maximize the scope of search au-thority and overcome problemswith probable cause by training of-ficers and familiarizing prosecu-tors and judges with the underly-ing logic. Assigning responsibilityfor firearm investigations also canfacilitate this process by developingexpertise and rewarding continued

focus on the investigation and pros-ecution of these offenses. Officersassigned responsibility for firearmviolations should ensure that otherpersonnel understand the potentialvalue of proper investigative proce-dures and apply them to all firearmcases.

Another proactive strategy in-volves understanding the unique na-ture of proof required to prevail incases of illegal firearm possession.For example, in most jurisdictions,firearms are not contraband. There-fore, any third party can, absent afelony conviction or other disabil-ity, step forward and claim owner-ship of a firearm. Such claims serveto raise issues of doubt regardingthe possession of the firearm by theprohibited person and constitute acommon defense strategy when ef-forts to suppress evidence fail.

Because the elements of fire-arm possession are simple and thekey witnesses are usually police of-ficers, creating doubt regardingpossession remains one of the fewavailable defenses. When officersfind the firearm on the defendant,such defense strategies prove virtu-ally useless. However, officers rou-tinely seize firearms from vehiclesand residences, as well as find thosediscarded by suspects prior to theirarrest.

To counter such a defense,officers should interview all poten-tial firearm possessors as quickly aspossible. At the early stages of in-vestigations, suspects and otherthird-party individuals, such asfriends, family, and associates, rou-tinely deny ownership or knowl-edge of firearms. Officers shoulddocument these denials, which maybecome critical in impeaching or

possession and note the responses.Further, by obtaining critical in-formation while the original sceneremains intact, officers can in-crease follow-up investigativeopportunities.

Proactive StrategiesAlthough most firearm arrests

result from other police actions,some simple initiatives can enhanceproactive efforts. All officers, par-ticularly narcotics officers, shouldinquire about weapons possessedby known felons when interviewing

May 1999 / 5

precluding later claims. Officersshould ask questions regarding ac-cess and control of the vehicle orarea where the firearm was foundand should note and photograph thesurrounding items. If officers find afirearm in a drawer with items ofclothing, they should note the typeand size.

Officers also should ensure thatsearch warrants include such indi-cia of ownership and evidence asholsters, ammunition, receipts, andphotographs of firearms. In onecase, a shoulder holster harness ad-justed for a large-framed manserved to undercut a claim by hiswife that the pistol belonged to her.In another, the defense began to ne-gotiate a plea after examining pho-tographs of the defendant posingwith the firearm. Additionally, bothammunition and ammunition boxescan provide fingerprints, and, underfederal law, ammunition is the legalequivalent of a firearm.14

Moreover, firearm cases needthe same follow-up investigationthat other serious felonies require,including such basic procedures asinterviewing all potential witnessesand tracing all firearms. Third-partywitnesses can serve to counter apopular defense strategy of claim-ing that the police planted evidence.Also, testimony of witnesses whoobserved the incident that broughtofficers to the scene may providethe jury with a better understand-ing of the events. Similarly, tracingfirearms often can bolster a cir-cumstantial case and make thedifference between winning andlosing.

In two cases, suspects beingpursued by police discarded theirhandguns before being arrested.

CONCLUSIONEffective law enforcement

management requires that resourcesbe directed in a way that willmaximize desired outcomes. If aprimary goal of police agencies isto reduce serious crimes, thenfirearm prosecutions offer aunique opportunity to do so atlittle cost. By using existing firearmlaws and joining forces with otheragencies, including the ATF and lo-cal probation and parole efforts, of-ficers can pursue another avenue ofattack on those criminals who mayhave evaded capture on more seri-ous charges. Further, by reexamin-ing the importance of firearm inves-tigations, administrators can offertheir officers an alternative to theoften dangerous and costly appre-hension of violent repeat offenders.With the lives of their officers andthe citizens they serve at stake, ad-ministrators should remain alert toany viable methods of solving vio-lent crimes.

Endnotes1 Polsby, Daniel D., “The False Promise of

Gun Control,” The Atlantic Monthly, March1994.

Although officers found the gunsnearby, no physical evidence linkedthe defendants to the guns. In bothinstances, investigators traced theguns from the original purchasersto locations where the defendantshad access to them. Both owners ofthe firearms testified that the gunsdisappeared near the time thedefendants were present, and bothdefendants, who collectively com-mitted at least five homicides andnumerous other felonies, were con-victed and sentenced to over 20years each.

Finally, investigators intent onsolving other crimes should notoverlook the innovative use of fire-arm charges. For instance, felonsseeking firearms represent potentialtargets for undercover stings. Also,little justification for high-risk un-dercover drug purchases exists ifinvestigators can arrest multi-convicted felons on a firearm viola-tion. Once officers understand thata conviction for possession of afirearm will impact a career of-fender as seriously as a convictionfor a violent felony, successfulprosecutions will follow.

Photo © PhotoDisc

2 18 U.S.C. § 922 (a)( 6).3 Id.4 U.S. Sentencing Commission, Sentencing

Guidelines Manual, Washington, DC, 1995.5 California Penal Code § 1170.12 (c)(2).6 James D. Wright and Peter Rossi, Armed

and Considered Dangerous: Aldine DeGruyter, 1986, 13 and 75.

7 Richard T. Wright and Scott H. Decker,Armed and Considered Dangerous:Northeastern University Press, 1997, 13 and17.

8 Only 26.9 percent of reported robberiesand 58 percent of reported assaults are clearedby arrests, see Federal Bureau of Investigation,

Crime in the United States (Washington, DC,1996) 205. About 40 percent of assault arrestsand 54 percent of robbery arrests subsequentlyresult in convictions for some felony crime, seeBrain Reaves, “Felony Defendants in LargeUrban Centers, 1994,” Bureau of JusticeStatistics, 1998. However, even the probabili-ties implied by these statistics, 14.6 percentconviction rate for robbery investigations,overstates the probability of any giveninvestigation resulting in a conviction absentcertain advantages such as a patrol arrest or asuspect known to the victim.

9 See United States v. Steeves, 525 F.2d 33,38 (8th Cir. 1975).

10 See United States v. Singer, 943 F.2d758, 763 (7th Cir. 1991) and United States v.Collins 61 F.3d 1379, 1384 (9th Cir. 1995).

11 Supra note 6, 14.12 Regarding threshold of evidence

necessary for issuance of a warrant, see UnitedStates v. Mendonsa, 989 F.2d 366, 368 (9thCir.1993) and United States v. Clark, 31 F.3d831, 834 (9th Cir.1994).

13 Terry v. Ohio, 392 U. S. 1 (1968)(although probable cause is not required for theprotective pat-down, the police are required topossess reasonable suspicion or other legitimatereason for the initial contact).

14 18 U.S.C. 922(g).


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May 1999 / 7

ver the past year, police in Europe and theUnited States have received reports of

laser would not, for the reasons of power and lengthof time on the eye, cause actual eye damage. How-ever, the laser’s incredible brilliance could surpriseand functionally disable officers. Also, ungroundedfear of permanent blindness could further impair theirjudgment. The susceptibility of officers to this type ofdebilitation remains largely psychological and woulddepend on their preparedness, training, and theconditions at the time of the incident. What is thisnew threat, and what can officers do to protectthemselves?

Lasers and the Human ResponseIn simplest terms, a laser is an intensely bright

light.1 Unlike conventional light, however, laser lighttravels out from the laser device in a narrow beammaintaining its brightness at long distances. Somehigh-power laser beams can vaporize steel or othermaterials. Also, laser beams are not only visible(colors that range from red to violet within the visiblecolor spectrum) but also invisible at both the infraredand ultraviolet ends of the color spectrum.

Although invented over 30 years ago, in the pastdecade, medical researchers, military authorities, andeven criminals have found multiple applications forlaser devices. Like computers and digital cameras,lasers also have become smaller, more powerful, lesscostly, and more available than ever before. Annualsales now exceed $1 billion.

Military uses of these lasers include range find-ing, target designation, and live-fire training (lasertag). Medical lasers, visible and invisible, are power-ful and now as small as a suitcase but remain expen-sive and require line voltage as opposed to batteries.These uses represent some of the positive purposes ofthe technical advances in laser manufacturing. How-ever, world arms merchants openly advertise invis-ible-beam laser weapons, notably of Chinese manu-facture, which criminals obtain to use in such illegalactivities as terrorist attacks and narcotics operations.2

While most lasers found outside of researchlaboratories or medical/industrial facilities cannotpenetrate metal or even damage skin, the eye remainsvulnerable. As laser light passes into the eye, itbecomes focused by the cornea onto the retina.Located at the back of the eye, the retina is a layer of

Laser Threatsto Law EnforcementBy Douglas A. Johnson, M.S.

Focus on Technology

Ojuveniles temporarily blinding subway drivers withlaser lights. Also, reports of British sports fans aiminglaser pointers at soccer players and American basket-ball spectators shooting lasers at the eyes of opposingplayers on the free throw line have surfaced.

Law enforcement officers in the United Stateshave begun experiencing similar situations. Low-power, visible-light lasers, whether designed for usein the classroom, laboratory, or on the battlefield, arethe easiest to obtain, detect, and most likely to be usedby low-tech hooligans. They also may be used as analternative to firearms because of favorable laws thatdo not define possession of a laser as a deadlyweapon.

Law enforcement officers could encounter low-power lasers during routine operations, such as trafficstops, or in special operations, such as hostagesituations. In most instances, light from this type of

Photo © Digital Stock


living cells that intense light (by causing highlylocalized heating of the area) can damage or perma-nently destroy. The actual effect on the eye will varywith the power of the laser, the length of time thelaser remains trained on the eye, and the portion ofthe retina that the focused light impacts. The effect oflooking into a laser beam can range from true blind-ness, to dazzling (similar to closely viewing a cameraflash), to annoyance. In many cases, the effects willnot last long, perhaps only several seconds to someminutes. Also, temporary irritationor the presence of afterimages(visual sensations occurring afterthe external cause has ceased)could last several days but eventu-ally should disappear and cause nofurther problems.

While lasers can cause avariety of visual impairments, thedazzle effect represents thegreatest threat to law enforcementofficers and could constitute acritical distraction in a tacticalsituation. The reaction to dazzlehas both physiological and psycho-logical components. Experts do not entirely under-stand the relationship between these two aspects.However, sudden exposure to dazzling and over-whelming light tends to startle some individuals.Sometimes an immediate, though temporary, loss ofvision will occur. Functional vision loss can happeneither because of the biological action of the eye todirect light or because of indirect glare caused byreflections from other objects.

These visual distractions of the dazzle effectprove more powerful at night because the pupilbecomes dilated and allows the greatest amount oflight into the eye. The dark-adapted eye becomesmore sensitive to the effects of light stimulus. There-fore, the dazzle effect occurs when a bright lightoverwhelms the eye as a sensor. The effect canbecome worse if the light passes through a visor,windshield, or other transparent lens. If the transpar-ent material is dirty or scratched from use or age, theeffect becomes more pronounced and, therefore, moreeffective in obscuring vision. Further, viewing a laser

through magnifying optics increases the potential todamage the eye and places officers using binocularsor magnifying scopes at greater risk.3

Such a laser use could cause mission failure,allow suspects to escape, or if used on officers whiledriving a vehicle or piloting an aircraft, cause a lossof control, which could lead to injury or death.Moreover, in tactical situations, affected officerscould become targets for suspects armed with lethalweapons.

Lasers and the Police ResponseIn a recent report, a university

detective referred to an incidentduring a crowded student activitywhere a red dot appeared on thechest of a security officer. Thedetective stated, “From a policeperspective, laser dots are usuallyattached to firearms. Seeing a laserdot outside of [a] classroomobviously caused us great con-cern.”4 Because they associatelasers with firearms, officersilluminated by even a laser pointer

may respond by drawing or even discharging theirservice weapons. If officers draw their weapons, thenperpetrators may respond in kind with the sameultimate end: fired weapons. An even worse scenarioinvolves youths playing with laser pointers notrealizing the potentially dangerous situation theycould initiate with police. Therefore, police depart-ments should consider developing a tactical laserdefense plan and training officers in how to minimizelaser threats.

First, laser eyewear protection represents aneffective hardware countermeasure, but it has somesevere limitations. For example, protective eyewearguards against only specific colors and laser powerlevels; therefore, officers must know the type oflaser employed against them. Also, protectiveeyewear costs over $100 per pair, is uncomfortable,prone to fogging, and may skew normal color percep-tion. And, finally, officers must wear the eyewearprior to any engagement where laser use couldoccur.

“

”

The effect of lookinginto a laser beamcan range fromtrue blindness,to dazzling..., to

annoyance.

May 1999 / 9

Most important, officers should know that noclinically accepted treatment for laser-related eyeinjuries exists at the present time. While it may seemjudicious to evacuate known laser-related eye casual-ties, officers must evaluate the tactical situation priorto doing so. Neither the affected officers, nor mem-bers of their team, should expose themselves to otherrisks for the sake of evacuation.

Additionally, annual or less frequent trainingshould emphasize probabilities of encounter, biologi-cal effects, and understanding the biological andpsychological responses (particularly for pilots anddrivers) caused by lasers. Departments should de-velop competent technical resources—such as localmilitary, university, industrial, or medical laserconsultants—who could train their officers or, onshort notice, assist with special missions. Also,departments should modify their rules of engagementto include specific criteria for evaluating laser threats.

ConclusionThe rising trend in laser use, whether legitimate

or criminal, warrants careful consideration by lawenforcement officials. Currently, lasers have a fearfactor that may exceed their actual hazards. However,law enforcement agencies should understand thateven a small threat can cause grave consequences touninformed officers.

Because the greatest laser threat environmentoccurs at night and primarily to aircraft or vehicle

A Reserve Navy Lieutenant Commander assigned toenvironmental health matters, Mr. Johnson serves as thelaser safety officer for Texas A&M University in CollegeStation, Texas, and sits on the American National Stan-dards Institute for Laser Safety committee.

operators, officers in these situations must receiveinformation about the dangers associated with laserusage. Agencies should evaluate the potential of laserencounters in their jurisdictions and implement basiclaser defensive instruction as part of an existingtraining program. Educating the law enforcementcommunity about such new potential hazards as laserthreats remains the most effective method of protect-ing officers from forms of technology developed forsociety’s enhancement but often exploited for mali-cious purposes.

Endnotes1 The word laser was originally an acronym derived from light

amplification by stimulated emission of radiation.2 Jane’s Defense Weekly (May 18, 1995) 3.3 Questions have arisen about the effect of lasers on night vision

goggles. Laser light cannot harm the eye if it first passes through thegoggles. What the eye sees is a processed signal, not the actual lightenvironment. How vision is affected will depend on the specifics of thelaser and the technology incorporated into the goggles. A possible rangeof effects varies from temporary saturation of all or part of the viewingfield (temporary failure) to permanent burnout of a portion of the viewingfield.

4 Information obtained from Detective Sergeant David J. Villarreal,Texas A&M University Police Department.

ecause some states may not have a report-ing category for lasers used in the commis-

Reporting Lasers Used in Crimes

Bsion of a crime, Texas A&M University, inconjunction with Walter Reed Army Instituteof Research has developed a Website to collectthis type of report for statistical purposes. TheU.S. Army Medical Research DetachmentsAutomated LASER Accident/Incident Report-ing Website at http://hoxie.brooks.af.mil/.LASER has a concise, easy-to-use AutomatedLASER Accident/Incident Report form for

officers to submit factual accounts of lasers usedin a criminal manner. Information collected in-cludes lighting conditions, color of laser, de-scription of the effects on the eye, and severalother categories. To gather as much informationas possible, all law enforcement officers areencouraged to submit laser incidents to theWebsite. In time, the results will be compiledand available online. Officers can directquestions to Douglas Johnson [email protected].


heck fraud can affect any-one. Almost every busi-ness owner, government

for more than 60 percent of all fi-nancial institution fraud.1 Most ofthese frauds involve counterfeit orstolen checks.

Various sources have estimatedthat the total economic impact ofcheck fraud on financial institu-tions, private businesses, and thepublic ranges from $815 million2

to between $5 and $10 billion3

annually. Unfortunately, becausethere is no source of reliable statis-tics, no one knows the total lossesincurred. However, based on anec-dotal information and the experi-ence of bank executives, check

fraud represents the most importantcrime problem affecting ournation’s financial community. Byidentifying organized check fraudactivity and implementing investi-gative and preventive strategies,law enforcement officers can have ameasurable impact on this perva-sive crime problem.

CHECK FRAUD INDICATORSInvestigators must remain alert

to indicators that signal check fraudactivity. They can identify suchleading indicators by completing acomprehensive crime survey,which requires evaluating demo-graphic information, analyzingcrime reports, and collecting datafrom financial and business com-munities, civic groups, and otherlaw enforcement agencies. By ana-lyzing suspicious activity reports,which financial institutions submitto the Financial Crimes Enforce-ment Network of the U.S. Depart-ment of the Treasury, and othercheck fraud complaints, local lawenforcement agencies can identify avariety of factors, such as the typesof fraud schemes prevalent in thearea and the identities of banks thatseem prone to check fraud activity.

Frequent check fraud attacksagainst a particular bank may resultfrom its location, inadequate inter-nal controls, or marketing strategiesthat present opportunities to savvycheck fraud artists. Some mutualfund companies, for example, regu-larly allow customers to open ac-counts by mail. A significant num-ber of check fraud complaints froma particular geographic area may in-dicate the presence of an active, or-ganized group that warrants law en-forcement attention.

Cagency, and financial institution, aswell as millions of private citizenshave been victimized by peoplewho have written bad checks withthe intent of getting something fornothing. In some jurisdictions, thelarge number of reports of fraudu-lent checks means that law enforce-ment officers can address only thecases with the most substantiallosses. Since 1987, bank fraudscommitted by nonemployees haverisen dramatically and now account

Combating CheckFraudA MultifacetedApproachBy WALTER N. HANSEN

© PhotoDisc

May 1999 / 11

Maintaining contact with banksand regulators may help investiga-tors identify weaknesses, developcontrols, and prevent future losses.At the same time, analyzing thecomplaints received from othervictims—such as departmentstores, check cashing establish-ments, and grocery stores—mayhelp law enforcement determine themodus operandi of the fraud artistsand assist in developing investiga-tive strategies.

Other types of criminal activityrelated to check fraud may serve asleading indicators. Counterfeitidentification documents, theft ofidentification by pickpockets,credit card fraud, and structuredcash transactions may point to orga-nized check fraud operations. Con-fidential informants with knowl-edge of underworld trafficking instolen and counterfeit identificationdocuments can help investigatorsidentify check passers and othersinvolved in organized check frauds.An organized group may include acounterfeiter or printer, a distrib-uter, one or more providers of falseidentification, and several“smurfs,” who open false bank ac-counts or visit check cashing estab-lishments to negotiate fraudulentchecks.

Organized pickpocket ringsrepresent excellent sources of falseidentification. On the streets ofNew York, a stolen wallet completewith identification and credit cards,referred to as a “spread,” has resalevalue. People buy spreads for a vari-ety of uses, including welfare,check immigration, and tax frauds.Therefore, informants who are fa-miliar with pickpockets in the com-munity can become reliable sources

of information about people whobuy stolen wallets, helping investi-gators uncover those involved incheck fraud.

INVESTIGATIVESTRATEGIES

Investigators can use a varietyof investigative strategies to ad-dress check fraud, including tradi-tional techniques, proactive ap-proaches, joint investigations, andtask forces. Each of these strategiesmay prove appropriate, dependingon the nature of the crime problemand the manner in which the com-plaint comes to the attention of lawenforcement. Law enforcement of-ficers should not view any singletechnique as a panacea; rather, theyshould develop a balanced ap-proach that incorporates severalmethods to address the identifiedcrime problems.

The overall strategy also shouldinclude all agencies that have juris-diction over the crimes being com-mitted. Above all, regular commu-nication and coordination remainessential when several agencies

become actively involved in attack-ing this crime problem. This provesespecially important when under-cover operatives serve in proactiveinvestigations of violations that fallwithin the jurisdiction of multipleagencies. Each agency must takeprecautions not only to protect itsundercover operatives but also toavoid the embarrassment that re-sults when one agency learns that ithas arranged to buy counterfeitchecks from the undercover agentof another agency.

TraditionalInvestigative Techniques

At first glance, the typical in-vestigative approach appears rela-tively straightforward. Followingreceipt of a complaint, the investi-gator interviews the victim; obtainsthe original check, copies of identi-fication documents, and surveil-lance camera films; and interviewseveryone else who came in contactwith the check and the person whopassed it, in an effort to identify asuspect. The victim and witnessesmay view a photo spread or lineup

“

”

...check fraudrepresents themost importantcrime problemaffecting our

nation’s financialcommunity.

Special Agent Hansen serves as an assistant specialagent in charge of the FBI’s New York field office.


that includes the suspect. Afteridentifying a subject, the investi-gator may use a confrontationalinterview to seek a confession.Failing that, the subject’s handwrit-ing and fingerprints may be subpoe-naed. The forensic laboratory com-pares latent fingerprints andhandwriting on the check withknown fingerprints and handwrit-ing exemplars to determine if theycan be identified as the subject’s.The evidence gets presented to agrand jury, which returns an indict-ment, thereby initiating the judicialprocess.

In reality, such cases can proveextremely difficult to solve. Inmany instances, investigators can-not develop key elements needed toresolve them. The surveillancecameras may not work, or the wit-nesses cannot give a consistent de-scription of the suspect. The checkpasser wears gloves or does notleave prints on the checks, or theprints do not match any knownprints. The laboratory may be un-able to match the handwriting onthe check with the writing sampleprovided by the suspect. Such ob-stacles may arise after investigatorshave worked for weeks or monthsexamining documents and inter-viewing victims and witnesses.

If the investigation proves suc-cessful and the suspect goes to trial,another year or more may passbefore the trial and sentencing.Check fraud investigations gener-ally take the same amount of time,regardless of the amount of thecheck. An average of 2 yearselapses between the opening of atraditional New York FBI checkfraud case and its final disposition.Professional check passers know

how long these investigations take.They also are confident that, as longas they do not become too greedyand remain willing to move aroundso as not to saturate a particular areawith bad checks, the chances of get-ting caught using traditional meth-ods are minimal.

Moreover, under federal sen-tencing guidelines, individuals withno prior convictions who passchecks for less than $70,000 canexpect to receive probation. Thisserves as an incentive for defen-dants to plead guilty to a single

required to process these cases, theymay not make a significant impacton the crime problem. Proactive ap-proaches may work best to identifythe criminal networks that posethe greatest threat to the financialcommunity.

Proactive ApproachesProactive techniques involve

the use of undercover operativesand cooperative witnesses or sub-jects. Other proactive measures,such as telephone intercepts andother technical and physical sur-veillance techniques, can success-fully identify members of organizedgroups and develop evidence oftheir activities.4

An undercover operation, prop-erly formulated and supported, canpenetrate and break up organizedfraud rings. Added benefits of thistechnique include the continual de-velopment of cooperative wit-nesses, who help to develop addi-tional cases, and the ability touncover other criminal enterprises,such as money laundering, drugtrafficking, stolen goods fencing,illegal arms dealing, and otherorganized crime endeavors. Be-cause of their intrusive nature, un-dercover operations must be care-fully formulated and evaluated toensure the safety of undercover of-ficers, minimize civil liability, andguard against entrapping potentialsubjects.

The typical undercover sce-nario begins with the arrest of acheck passer who agrees to cooper-ate and introduce investigators toothers involved in the fraud. Con-sensually recorded conversationsbetween the cooperative witness,undercover officer, and subjects,

“ Investigatorsmust remain alertto indicators that

signal checkfraud activity.

”count but provides no motivationfor them to cooperate with law en-forcement. Consequently, tradi-tional investigations frequently re-sult solely in the conviction of thecheck passer. It remains extremelydifficult to identify, let alone con-vict, the passer’s associates, such asthe thief or counterfeiter and thoseinvolved in distributing the checks.

Traditional methods of address-ing check fraud may be necessary,based on the timing of the com-plaint and the circumstances of theoffense. These techniques can pro-mote fairly regular case clearancerates and can successfully convictindividual check passers. Butbecause of the amount of time

May 1999 / 13

coupled with the purchase offraudulent checks, identificationdocuments, and other contraband orevidence, capture the illegal activ-ity as it occurs. This scenario, whenproperly executed, produces ex-tremely strong evidence against thesubjects. It also helps the prosecutorto define the true nature of thefraud by demonstrating that mul-tiple transactions and high losseswould have occurred without theinvestigation.

Investigators and prosecutorsalso can take advantage of strongerpenalties to encourage subjects tocooperate, thereby supporting theexpansion and continuation of theoperation. For example, one FBIundercover operation has beenactive for over 14 years and hasresulted in the arrest and convictionof over 700 individuals, dozens ofwhom have agreed to cooperate tofurther the investigation. Violationsrevealed and prosecuted during thisinvestigation have included bank,wire, and mail fraud; conspiracy;drug trafficking; illegal arms traf-ficking; and counterfeiting. Sub-jects have been equally diverse,ranging from illegal immigrants todiplomats, car service operators,grocery store owners, and membersof organized crime families.

While proactive efforts are bestsupported by undercover officers oragents, cooperative witnesses mayhelp investigators gain introduc-tions into organized fraud activities.Close supervision of cooperatingindividuals and electronic andphysical surveillance during theiroperational activities remains es-sential to maintain control overthe investigation. By involving

experienced investigators and exer-cising close managerial oversightand control, the risks inherent inthis approach can be minimized.

Joint InvestigationsWhen enforcement agencies

actively work together on a case,they can reduce the time required tobring it to a conclusion while add-ing depth and flexibility to their in-vestigative and prosecutive strate-gies. Federal investigative agenciescan provide a variety of resouces,such as advanced laboratory analy-sis, specialized expertise, funding,and endurance, that is, the ability to

concentrate on one case for a longperiod of time. Local police depart-ments can share their strengths,such as rapid response, institutionalknowledge of local criminal ele-ments, community support, broadinformation coverage, staffing, andspecific knowledge of identifiedsubjects, repeat offenders, in par-ticular. The combination of theseassets, coupled with the ability toselect a prosecutive venue in eitherthe local or federal courts, results ina formidable array of weapons thatcan be directed against organizedfraud rings. Other agencies, such asbanking regulators and offices of

FBI investigations identified common techniques used byfraudulent check passers in New York:

• Customer attempts to open an account with a corporatecheck or other third-party check

• Customer tries to flatter, hurry, or confuse the teller todraw attention away from the transaction

• Customer delays endorsing a check or producing identifi-cation during peak hours to frustrate the teller and hurrythe transaction

• Customer presents for cash a low-numbered check drawnon a new account

• Customer offers foreign documentation (birth certificate,passport, visa) or nonphoto identification (social securitycard, credit card) in lieu of photo identification to open anaccount or cash a check

• Customer offers altered or damaged identification to openan account or cash a check

• Customer attempts to cash or convert several smallchecks into wire transfer, gold, or other tender

• Customer requests an exception to established rules toforce the transaction.

Red Flags that May Signal Check Fraud


inspectors general, also can add ex-pertise and inside information thatcan provide valuable assistance tomore complex investigations.

When agencies work closely to-gether, they must agree on how tohandle sensitive or protected mate-rial, such as grand jury and infor-mant information. Participants havea responsibility to agree on answersto a host of potential questions.Who will participate in interviews?Who will take notes during inter-views? Whose reporting formatswill be used? Who will maintaincustody of documents and evi-dence? Who will contact infor-mants and deal with cooperativewitnesses? Who will prosecute thecase? Close cooperation by first-line management remains essential,both at the beginning and through-out the investigation, to ensure thatthe participating agencies agreeupon protocols to address suchquestions and other potential areasof concern so that investigators canconcentrate on solving the case.

Joint investigations can accom-plish great results if managers andinvestigators can set aside their in-stitutional pride and professionalallegiances to work together tosolve problems. For example, inone instance, several New Yorkbanks reported to the FBI that theywere being defrauded by customerswho opened checking accounts us-ing counterfeit Russian identifica-tion documents and stolen checks.The subjects withdrew most of thefunds as soon as the checks clearedand before the thefts were reported.At the same time, U.S. postal in-spectors learned that bags of mailwere being stolen from large officebuildings in Manhattan. Through

close communication and coopera-tion, the FBI and the postal servicequickly determined that the depos-ited checks had been stolen from thesame Manhattan office buildings.

This case quickly grew from apostal inspection matter to a jointinvestigation with the FBI and theU.S. Secret Service in New Yorkand Miami. Violations includedtheft from the mail, over which the

this investigation resulted from thewillingness of the investigatingagents to work together informallyusing both traditional and proactiveinvestigative techniques. Althougheach agency could have pursued itsown aspect of the case individually,separate indictments would nothave had the impact of the RICOcharges that resulted from theirjoint efforts.

Task Force OperationsUnlike joint investigations,

which address specific illegal acts,task forces tend to address moregeneral crime problems. The forma-tion of a task force provides a moreformal environment for investiga-tors from different agencies to worktogether. A task force may encom-pass a number of separate investiga-tions or be set up to support a spe-cific investigation. For example,task forces have been used to inves-tigate complex terrorist bombing in-vestigations, such as the bombing ofthe Oklahoma City Federal Build-ing and the Olympic Park bombingin Atlanta. Task forces also mayprovide an efficient way to addressa particular problem. Joint federaland local fugitive and violent crimetask forces remain fairly common inlarger U.S. cities.

Financial crime task forces,though not as numerous, also arebeing used in several states withgreat success. The formality of atask force, which differentiates itfrom a less formal joint investiga-tion, is embodied in a memorandumof understanding (MOU) that de-scribes the protocols to be followedand is endorsed by the leaders ofthe participating agencies. TheMOU spells out such broad issues

“Proactive approachesmay work best to

identify the criminalnetworks that posethe greatest threat

to the financialcommunity.

”U.S. postal inspector has primaryjurisdiction; bank fraud, in whichthe FBI has primary jurisdiction;and credit card fraud, in which theFBI and Secret Service share juris-diction. Several of the subjects hadties to a recognized organized crimefamily, and one of the conspiratorsallegedly was murdered when hefailed to turn over proceeds fromstolen checks that he had been en-trusted with, facts that further whet-ted the interest of the FBI.

The indictment charged mul-tiple subjects with violating theRacketeering and Corrupt Organi-zations (RICO) statute and includedallegations of murder and con-spiracy in addition to the financialcrimes charged. The successful ac-cumulation of all of the evidence in

May 1999 / 15

as mission, goals, and objectives, aswell as such details as the locationof office space, transportation,supervision, funding, equipment,evidence storage, and recordretention.

Task forces addressed bankfailures that occurred in the early1990s in several cities, includingDallas and Boston. The ArizonaBank Fraud Task Force (BFTF),which focuses on check fraudand other attacks on banks bynonemployees, was formed onMarch 2, 1992, to address the fraudproblem in Maricopa County, Ari-zona. This task force includes rep-resentatives from the Phoenix divi-sion of the FBI; the MaricopaCounty Attorney’s Office; thePhoenix, Glendale, Tempe, Mesa,and Scottsdale police departments;the Arizona Attorney General’s Of-fice; and the U.S. Attorney’s Officefor the District of Arizona. Improv-ing cooperation and communicationamong participating agencies andthe financial institutions in the arearepresents one of the primary func-tions of the BFTF. To accomplishthis, the BFTF serves as a centralreporting entity for bank fraudcomplaints, thereby reducing theconfusion that often results whencomplaints are submitted to mul-tiple agencies with overlapping ju-risdiction. This central facility alsopermits better analysis of com-plaints and improves the possibilityof identifying organized fraud ringsthat operate in the area.5 As of Feb-ruary 1998, this task force had in-vestigated 1,898 cases, involvingmore than $33.5 million in losses,which resulted in 539 indictments,482 convictions, and more than

$10.5 million in court-orderedrestitution.6

The Arizona BFTF served asthe prototype for the Metro DenverBank Fraud Task Force, formed inDenver, Colorado, in 1996, to pro-mote communication, establish andmaintain an information base, in-vestigate multijurisdictional cases,and serve as an educational re-source for financial institutions.

PREVENTIVE STRATEGIESLaw enforcement agencies can

develop preventive strategies tocombat check fraud. These includeworking with potential victims toimplement fraud prevention mea-sures and training financial profes-sionals to recognize and preventfraud. Such strategies can help thefinancial community develop an un-derstanding of the problem, allocateappropriate resources to address it,and reduce the demand on limitedinvestigative resources while pro-viding a relatively low-cost way toreduce check fraud losses.

Fraud Prevention MeasuresLaw enforcement agencies may

think of fraud prevention measuresas the internal responsibility ofbanks and other potential fraud vic-tims in the financial community.The banking and investment indus-tries stress the concept of “knowyour customer” and the perfor-mance of “due diligence” as key-stones of their fraud preventionmethodology. Neither of these con-cepts appears, at least on the sur-face, to involve law enforcement.However, a role does exist for in-vestigators to help potential victimsof fraud guard against loss.

Regular communication offraud-related information can ben-efit both the law enforcement andfinancial communities. Althoughprivacy laws and disseminationrules and regulations may restrictthe type of information communi-cated, all parties can benefit if theyestablish appropriate protocols forexchanging information. In theRussian check fraud case, basedupon information provided from

The Denver BFTF includes partici-pants from 13 federal and local in-vestigative agencies and six federal,state, and local prosecutors’ offices.Task force guidelines call for re-porting financial institutions to sub-mit standardized suspicious activityreports that allow task force ana-lysts to collate complaints, identifysimilarities that could indicate orga-nized frauds, and initiate investiga-tions in a timely fashion.7 Both theArizona and Denver task forcesdemonstrate the finest qualities ofinitiative, creativity, and coopera-tion in law enforcement as theywork to serve their communities.

© PhotoDisc


victim banks, investigators dissemi-nated a profile of the fraud schemeto all banks in the area. The profileincreased the awareness of banksto the scheme, thereby preventingdirect losses. Banks also identifiedother fraudulent accounts beforethey incurred further losses. Thus,by sharing fraud profile informa-tion, investigators can help finan-cial institutions and industry regula-tors devise audit techniques andother preventive measures that theycan use on a regular basis to preventfraud.

Law enforcement also can sup-port innovative fraud preventiontechniques, such as the inkless fin-gerprinting campaigns that some fi-nancial institutions have launched.Banks in Nevada, Arizona, andTexas experienced remarkable re-ductions in check fraud losses afterthey began requiring thatnoncustomers provide inkless fin-gerprints when cashing checks atthe teller line. Although initial testsof this technique in New York andCalifornia more than 10 years ear-lier met with mixed results, moderninnovations in automated finger-print processing and aggressivemarketing by financial institutionsresulted in more recent loss reduc-tions of between 43 and 59 percent.8

According to the American BankersAssociation, financial institutionsin other states, encouraged by thesuccesses in Arizona and Texas, areconsidering the use of the inklessfingerprints, as well.9 While, ulti-mately, financial institutions andother check cashing establishmentsmust decide if they wish to employthis strategy, law enforcement offi-cials can support the expansion ofinkless fingerprinting techniques by

reinforcing marketing strategiesand speaking to civic groups aboutthe advantages of the process. Inaddition, by ensuring that they willact upon complaints involving fin-gerprinted checks in a timelymanner, law enforcement officialsalso can provide incentive for finan-cial institutions to invest in theseprograms.

Banks also have used finger-printing in other ways to minimizethe risk of fraud. Some banks re-quire that corporate customers sub-mit the fingerprints of employees

employees who handle checks to befingerprinted as a reasonable condi-tion of employment, which not onlycan reduce fraud losses but also canresult in unexpected benefits.

TrainingMost financial institutions re-

quire periodic training of tellers andother employees. Law enforcementagencies can offer to provide checkfraud awareness training to finan-cial institutions, retailers, accoun-tants, and civic groups, as well as toothers who may come in contactwith fraudulent transactions. Train-ing sessions that identify the redflags that signal fraud and reinforceinternal controls and fraud report-ing procedures can effectively re-duce check fraud losses. The atten-dance of a law enforcement officerat this training can improve studentinterest and emphasize the impor-tance of the information. Somebanks and large retailers can pro-vide professional videotapes thatdemonstrate red flags and showcheck passers in action.11 Usingsuch training aids, along with ex-amples of actual cases, reinforcesthe subject matter and helps em-ployees remember importantpoints.

Training sessions also promoteand improve relationships betweenlaw enforcement agencies and thecommunities they serve. Additionalbenefits may include better commu-nication between investigators andofficers of victim institutions, moretimely reporting of fraud attempts,quicker responses to subpoenas,and easier access to employeewitnesses.

Enforcement officials also canbenefit from fraud awareness

“Law enforcementagencies can

develop preventivestrategies to

combat checkfraud.

”who have access to company ac-counts. In one instance, this practiceresulted in the apprehension of afugitive who had been wanted formurder for almost 20 years. In 1995,when Aramark Food Services Cor-poration, the maker of Tupperware,gave an employee access to its cor-porate bank account, the bank re-quired him to be fingerprinted. Af-ter forwarding his fingerprints tothe FBI, the bank discovered that hewas wanted for the 1976 drive-bymurder of a 52-year-old man in asuburb of Brooklyn, New York.10

Thus, law enforcement shouldencourage business owners to es-tablish policies that require all

May 1999 / 17

training. Patrol officers and thosewho concentrate on other types ofcrime—whether violent crime, or-ganized crime, or drug-related of-fenses—can help financial crimesinvestigators by remaining alert forcheck fraud paraphernalia, stolen orcounterfeit identification docu-ments, and other indicators of fraudactivity during their routine arrest,search, and investigative activities.Police officers and investigators,who may not deal with financialcrimes on a regular basis, can re-ceive clear instruction that includeshow to spot fraud and process fraudevidence.

CONCLUSIONCheck fraud is a significant

crime problem that victimizes cor-porations, government agencies,and private individuals. Law en-forcement organizations must workwith the communities they serve toidentify the leading indicators offraud and develop investigative andpreventive strategies to effectivelycombat this problem. Investigativestrategies should include a balancedapproach that incorporates both tra-ditional and proactive investigativemethods. Joint investigations andtask forces comprised of severalagencies have proven highly suc-cessful in some jurisdictions.

Preventive strategies can in-clude the use of fraud preventionmeasures, such as developing fraudprofiles and instituting fingerprint-ing policies, as well as providingtraining for potential victims. Pre-ventive techniques can reduce thedemand on limited investigative re-sources and provide a relatively lowcost way to reduce check fraudlosses.

The ability of law enforcementofficers to develop protective andmutually beneficial relationshipswith the communities they serveremains the cornerstone of anycrime prevention effort. Together,law enforcement agencies and fi-nancial institutions can employ in-novative strategies to combat checkfraud.

Endnotes1 FBI Financial Institution Fraud Criminal

Referral Statistics for Fiscal Year 1995,September 30, 1995.

2 American Bankers Association, “1994ABA Check Fraud Survey,” November 30,1994.

3 Saul Hansell, “New Breed of CheckForgers Exploits Desktop Publishing,” The NewYork Times, August 19, 1994.

4 Because laws vary among jurisdictions,officers should consult their legal advisors orlocal prosecutors before using any of thesetechniques.

5 Howard D. Sukenic, J.D., and James G.Blake, J.D., “Combating Bank Fraud inArizona, FBI Law Enforcement Bulletin,November 1994, 8-12.

6 Rudy N. Ruiz, financial analyst, ArizonaBank Fraud Task Force, FBI, Phoenix, AZ,personal interview, March 26, 1998; see alsoHoward D. Sukenic and James G. Blake,“Teaming Up Against Financial Fraud,”Independent Banker, September 1996, 50-51.

7 “Metro Area Bank Fraud Task ForceOperating Guidelines and Procedures,”unpublished internal document, September 17,1996.

8 Genilee Swope Parent, “An EffectiveCheck Fraud Prevention Tool,” Bank Securityand Fraud Prevention 3, no. 6 (June 1996): 5.

9 Supra note 8, 1-7.10 Dennis Hevesi, “Fingerprints Reveal

Suspect on the Run from ‘76 Killing,” The NewYork Times, August 19, 1995, 1.

11 The New York Clearinghouse, anassociation of major New York banks, hasproduced a training video that emphasizes redflags. In addition, the FBI, in concert with theCity of London, England, Police Department,has produced a video with an accompanyingtraining guide, titled “A Meeting of Minds,”which examines complex fraud schemes.

Wanted:Photographs

he Bulletin staff isalways on the lookoutT

for dynamic, law enforce-ment-related photos forpossible publication in themagazine. We are interestedin photos that visually depictthe many aspects of the lawenforcement profession andillustrate the various taskslaw enforcement personnelperform.

We can use either black-and-white glossy or colorprints or slides, although weprefer prints (5x7 or 8x10).Appropriate credit will begiven to contributing photog-raphers when their workappears in the magazine. Wesuggest that you send dupli-cate, not original, prints aswe do not accept responsibil-ity for prints that may bedamaged or lost. Send yourphotographs to:

Brian Parnell, ArtDirector, FBI LawEnforcement Bulletin,FBI Academy, MadisonBuilding 209, Quantico,VA 22135.


Buffalo's Alternative to 911By Gerald W. Schoenle, Jr.

he three-digit telephone number, 911, hasgrown into a huge success. However, too much

department employs almost 1,000 sworn and 300civilian employees. The surrounding County of Erie,however, maintains the 911 system, which receivesnearly 2,000 calls every day and over 600,000 calls ayear.2 After county employees enter the calls into theBuffalo Police Department’s (BPD) computer aideddispatch system, BPD dispatchers take control ofthose in their jurisdiction.

Because of the overwhelming number of 911calls, the Buffalo commissioner of police set up acommittee to research the problem of managing thesecalls for service. The committee included the com-missioner, the commanding officer of communica-tions, the county 911 coordinator, and a consultantfrom a local advertising agency. The committeeidentified the scope of the problem and discussed theavailable options. Ultimately, the committee decidedthat instituting a nonemergency telephone numberprogram represented the best solution for Buffalo.

Because the number needed to be easy to remem-ber, the committee debated the merits of a seven-digitversus a three-digit nonemergency telephone number.While advantages exist for both, the committeedecided to implement a seven-digit number becauseof the immediate availability of one at virtually noadded cost. Additionally, the county was concernedthat a three-digit number might vastly increase thetotal volume of calls into the system. In fact, thishappened in Baltimore after that city implemented its311 number. From October 1996 through March1997, the Baltimore Police Department had an 11percent increase in total calls compared to the sameperiod the year before. Fortunately, the departmentexperienced no significant problems because it hadenough limited-duty personnel to staff thenonemergency number.3 However, because every cityhas different needs and resources, police agenciesshould evaluate these factors carefully before imple-menting a nonemergency telephone system.

Defining Emergency CallsBPD defines emergency calls as police, fire, or

medical emergencies that include any life-threateningsituations or a crime in progress. However, even afterimplementing the nonemergency telephone number,

Tof a good thing has overloaded the emergencynumber’s infrastructure and caused major problemsfor many cities, including Buffalo, New York.

For years, Buffalo citizens called 911 for allpolice services. In time, however, the system becamebogged down with calls, which proved mostlynonemergency in nature. In Buffalo, as in other cities,citizens who called 911 often encountered busy linesduring peak calling times. Something had to be done.

Recently, Buffalo and at least three other citieshave taken steps to stem the flow of nonemergencycalls into their 911 systems by providing an alter-native telephone number. For example, Dallas,Baltimore, and Chicago established 311, whileBuffalo set up 853-2222, as options fornonemergency situations.1

Sizing Up the ProblemBuffalo has a population of approximately

340,000 and covers about 42 square miles. Its police

Police Practice

May 1999 / 19

the department still encourages citizens to call 911 ifthey cannot determine if a situation is a true emer-gency. Primarily, BPD asks citizens to call thenonemergency number whenever they need advice orassistance that does not require an immediate emer-gency response.

Educating the PublicAfter deciding to use an alternative

nonemergency telephone number, BPD developed theobjectives that it wanted to communicate to the publicconcerning the new system. Next, BPD hired aprofessional advertising agency toassist in educating the public aboutthese objectives, which included

• creating a message that wouldchange the public’s percep-tions and expectations inregard to 911;

• making the public aware ofwhat constitutes a real emer-gency versus a nonemergency;

• decreasing the number ofnonemergency 911 calls soBPD personnel could respondwhere they are truly needed—to potentially life-threateningsituations;

• enhancing the scope of the differential responseprogram4 by increasing the staff and the types ofcalls they handle; and

• providing officers with more time for communitypolicing efforts.To promote and link the new nonemergency

number with the well-known 911 system, the advertis-ing agency created a lyrical jingle: For real emergen-cies, call 911 and we’ll quickly send someone. Fornonemergencies, it’s 853-2222 and we’ll tell youwhat to do!5 The agency also developed brochuresexplaining what constitutes a real emergency andwhat illustrates a nonemergency. Other educationaland promotional materials included outdoor graphics,street banners, newspaper ads, television and radiocommercials, stickers for telephones, bookmarks for

school children, and bumper stickers for police andprivate vehicles.

Hiring the advertising agency proved of greatvalue to the success of implementing the program. Inaddition to promoting the message, the agency alsoassisted in obtaining funds for the program from boththe public and private sector. For example, the localtransit company donated advertising space on itsbuses, various private agencies donated billboardspace, both the broadcast and print media providedpublic service announcements, and a private sectorgroup committed to assisting the City of Buffalo

funded the additional advertising.Further, having a local advertisingagency as a member of the com-mittee proved very beneficialbecause the agency understoodboth the concept of the programfrom the beginning and the limita-tions of the city’s resources.

Managing Calls for ServiceThe communications section

of BPD views the nonemergencynumber program as an importantstep in assisting public safetyagencies to manage calls for

service. The bigger picture involves the entire com-munity policing effort, including differential responseprograms that encourage citizens to call and reportcrimes over the telephone. Also, part of this processincludes informing citizens of the correct agency theyshould contact in a given situation. BPD accom-plished this, in part, by listing the 10 most frequentlycalled referral agencies in its nonemergency numberbrochures. Therefore, the public can contact theappropriate agency directly and help to further reducecalls to the 911 and the alternative nonemergencysystems.

Another element in the successful management ofcalls involves personnel. While BPD has civilianemployees answering the nonemergency calls,Baltimore has limited-duty police officers answeringthem. The Baltimore system proves beneficial be-cause trained police officers can give appropriateadvice that could eliminate the need for a patrol

“

”

...freeing up 911lines for true

emergencies hasproved a goal worth

pursuing for theCity of Buffalo.


• Minimal cost to the taxpayers

• Ease of implementation (number wasalready available)

• Citizens must evaluate their situations,which could decrease calls to police

• Total volume of calls would be lesslikely to increase, thereby avoiding the911 problem

• Easy number to remember

• Ability to make free calls from paytelephones

• Possibility of one nonemergency numberfor the entire country

• Ability to have calls routed to severaldifferent off-site locations that corre-spond with locations of originating calls

• More difficult to remember

• Calls from pay telephones are not free

• Confusing to citizens from other juris-dictions

• Likelihood of increased volume of calls

• Costs—two systems and dedicatedrevenue source are needed

• Timeliness of implementation

• Assists with managing calls for service

• 911 dispatchers are released for true emergencies

• Educates the public about what constitutes a real emergency

• Increases public awareness that certain calls do not require an emergency response

• Enhances community policing efforts

• Encourages an aggressive differential response program

Seven-digit Number and Three-digit Number Considerations

Advantages of Seven-digit Number Advantages of Three-digit Number

Disadvantages of Seven-digit Number Disadvantages of Three-digit Number

Advantages of Both Systems

response. This method clearly enhances the differen-tial response program in Baltimore and seems to bea major reason for the city’s success. Further, byreducing calls for service, the officer on the streethas additional discretionary time. Proper channelingof this time further enhances community policingefforts.

Determining the ResultsBoth Buffalo and Baltimore kicked off their

nonemergency number programs on October 1, 1996.While the programs have existed for only 2 years,both have enjoyed varying degrees of success. Mostimportant, both cities have reduced 911 calls bynearly 20 percent.6 Moreover, the Department of

May 1999 / 21

Justice Community Oriented Policing office recentlyvisited Buffalo and is considering studying all threenonemergency programs. Whatever the ultimateoutcome of such a study, freeing up 911 lines for trueemergencies has proved a goal worth pursuing for theCity of Buffalo.

ConclusionFaced with a 911 emergency telephone system

overloaded with nonemergency calls, the BuffaloPolice Department needed to find a viable alternative.As in a few other cities, Buffalo elected to implementa separate telephone number for all nonemergencycalls for service. After weighing the advantages anddisadvantages of a seven-digit versus a three-digittelephone number, Buffalo chose the seven-digitoption based on the city’s needs and available re-sources.

Other jurisdictions faced with the same problemmay consider Buffalo’s solution. Several factorsprove critical when deciding if this approach will

Captain Schoenle serves as the director of communicationswith the Buffalo, New York, Police Department.

work for them, including evaluating their needs andresources, defining their objectives, and educatingtheir citizens. Because effectively and efficientlymanaging their calls for service proves an ongoingdilemma for most law enforcement agencies,Buffalo’s alternative may provide a new outlookon an increasingly burdensome problem.

Endnotes1 Additional jurisdictions, including San Jose, California, are

considering implementing similar systems.2 Records from Erie County 911.3 Baltimore Police Communications Division evaluation report, April

1997.4 Differential response programs include citizens reporting crimes by

telephone and officers conducting initial investigations of certain crimesby telephone rather than immediately sending officers to the scene.

5 The Schutte Group.6 Records from Erie County 911 and the Baltimore Police Department.

T he FBI Law Enforcement Bulletin staffinvites you to communicate with us

via e-mail. Our Internet address [email protected].

We would like to know your thoughts oncontemporary law enforcement issues. We

welcome your comments, questions, andsuggestions. Please include your

name, title, and agency on alle-mail messages.

Also, the Bulletin is availablefor viewing or downloading ona number of computer services,as well as the FBI’s homepage. The home page addressis http://www.fbi.gov.

The Bulletin’sE-Mail Address


aw enforcement administra-tors interact with the newsmedia on a daily basis. Sev-

This relationship between themedia and law enforcement some-times creates certain antagonismsbetween the two parties. To beginwith, law enforcement officials donot always want particular mattersreported to the general public, oftento protect the integrity of an investi-gation or even to avoid embarrass-ment to their departments. How-ever, media representatives actunder a responsibility (i.e., thepublic’s right to know) to presentcertain information regardless ofthe desires of law enforcementofficials. Also, they zealously avoidappearing as the voice of law

enforcement in order to appear im-partial. Because the public has aninterest in the activities of law en-forcement, the media, as a businessentity, has an economic interest toreport on law enforcement matters.

Moreover, because media rep-resentatives have ethical obliga-tions to present only the informa-tion they believe to be factual, theymust not allow government offi-cials to use them to present falseinformation to the general public,regardless of the reason.1 There-fore, the question remains, are lawenforcement officials under anysimilar ethical obligation to not

Leral reasons exist for this relation-ship. In addition to providing cur-rent events, the news media have adistinct role in a democracy to over-see the actions of the traditionalthree branches of government andthereby prevent abuses of power bythose branches. Law enforcementofficials routinely inform the gen-eral public of their activities, andoften use the news media to presentthis information, as well as to con-vey their side of a particular inci-dent or their position on an issue.

The Ethics ofIntentionallyDeceiving theMediaBy MICHAEL E. BROOKS

May 1999 / 23

intentionally present false informa-tion to the media, either for dissemi-nation to the public, or to thwart amedia inquiry into law enforcementactivities?2 Making the decision tolie to the media involves many com-plex issues, including some impor-tant ethical concerns.

The Decision to LieBefore intentionally manipulat-

ing the media by means of decep-tion, law enforcement officialsmust consider their actions care-fully. For example, many ethicsscholars have stated that law en-forcement officials should neverknowingly present false informa-tion to the media.3 However, sup-pose a law enforcement administra-tor conducts an undercoveroperation designed to expose a ringof narcotics suppliers in a particulararea of a city. The administratormay desire to entice the ring tomove into another area of the citywhere undercover officers can pur-chase narcotics without suspicion.To accomplish this, the administra-tor drafts a press release announc-ing the seizure of a large supply ofnarcotics destined for the area of thecity where the undercover officersare operating and gives it to the de-partment press officer, who doesnot know that it contains false infor-mation. After local newspapersprint the press release, the under-cover officers approach the subjectsof the investigation claiming theyneed a new supplier. This approachsucceeds, and the subjects eventu-ally are arrested after passing nar-cotics to the undercover officers.

Clearly, the individuals in-volved in deciding to lie to the press

made a choice to present false infor-mation because of a belief that theuse of deception prevented a greaterevil than the lie (i.e., narcotics sup-pliers being apprehended). This re-mains a moral and ethical choice.Individuals, including law enforce-ment officials, make such choicesfrequently. Most individuals will lieto protect another’s feelings, to getsomeone else to do or feel as de-sired, or even to avoid embarrass-ment to themselves. Consciously orsubconsciously, this decision to liealways comes down to a moralbalancing of the consequencesinvolved.

Moreover, law enforcement of-ficers often use deception as a partof their duties in conducting crimi-nal investigations. Informants, un-dercover operations, and stingsserve as just a few examples. Whilesome ethics scholars and research-ers question whether such practicesby government entities are ethical,most accept them as morallypermissible as long as they are

conducted within certain legal pa-rameters such as the restrictions onentrapment.4

The common deceptive prac-tices employed by law enforcementofficials primarily involve deceiv-ing individuals who they have iden-tified as being involved in criminalactivities. The officials must de-velop information and evidence notreadily available from other sourcesbut necessary to successfully pros-ecute a criminal case. Some arguethat the ethical justification for suchpractices far outweighs any nega-tive effect of the deception by thepositive results surrounding theidentification and successful pros-ecution of a criminal who wouldotherwise evade detection and pros-ecution. However, other ethical is-sues arise when the target of thedeception becomes the news media,as opposed to a suspected criminal.

Ethical ObligationsThe first ethical issue concerns

the fact that the ultimate “victim” of

“

”

Law enforcementadministrators must

think about more thanjust law enforcementobjectives in deciding

whether to usedeception involving

the media.

Special Agent Brooks teachesethics at the FBI Academy.


the deception is the general publicwho receives the false informationfrom the media. Because law en-forcement serves the general public,a question arises whether law en-forcement officials have ethical ob-ligations to present only truthful in-formation to the public. Someaccept “no comment” as a morallysound response when law enforce-ment officials have information thatthey cannot or should not share withthe general public. Where publicdisclosure laws exist, the courts candecide whether to force law en-forcement to provide information tothe news media. But some scholarsbelieve that a “no comment” re-sponse and a disagreement concern-ing the applicability of laws techni-cally are not lies. While a suspectedcriminal may not always have aright to expect truthfulness fromlaw enforcement, citizens shouldhave a right to expect the truth frompublic officials, including law en-forcement officials, at all times.Some officials question whetherthey should ever ethically ignorethat right.

A second ethical issue revolvesaround the reason law enforcementofficials use deception with thenews media. While law enforce-ment officials practice deceptionwith suspected criminals to gatherinformation for presentation to ap-propriate prosecutorial or judicialauthorities, they also may need toget false information into the publicarena in order to elicit some actionfrom these suspects. For example,in a case where a criminal is un-known, the false information cancause the offender to be identified.5

Because media attention on

high-profile cases can hinder pro-fessional and thorough investiga-tions, some law enforcement offi-cials may attempt to divert mediaattention from such sensitive inci-dents. Yet other law enforcementadministrators may desire to dis-courage media attention from mat-ters which prove an embarrassmentto another official or their agency.However, a question arises whetherthese reasons prove ethically suffi-cient to legitimately deceive themedia.

the publicity essence of the public-ity requirement. Therefore, beforeindividuals can morally and ethi-cally justify deception, they must bewilling to publicly justify the deci-sion to deceive. Police officials whoengage in the common forms of lawenforcement deception generally donot find it difficult to meet this re-quirement. For example, no law en-forcement official would hesitate topublicly defend a decision to con-duct an undercover operation de-signed to gather evidence againstorganized crime figures. In fact, thisdefense occurs routinely duringcriminal trials.

Law enforcement officials con-templating intentionally deceivingthe media should ask similar ques-tions—if the official would be will-ing to publicly explain why the de-ception was used, and if they arewilling to accept any consequencesof the public disclosure. The deci-sion to lie to the media remains, ineffect, a decision to lie to the gen-eral public. Law enforcement offi-cials should only consider such adecision in the rarest of circum-stances when some overriding pub-lic safety issue forces the action.The ethical requirement of publicitybecomes part of this equation whena law enforcement officer considersa lie to the public, as opposed to alie to the media, to avoid publicpanic. If some morally overridingreason, such as public safety,obliges an official to lie, then it alsorequires an explanation or apologyfor the deception later, after the cri-sis has passed. The possible conse-quences of such an admission de-serve consideration in the initialdecision.8

“The decision to lieto the media

remains, in effect,a decision to lie tothe general public.

”Ethical JustificationsIn order to help law enforce-

ment officials resolve ethical dilem-mas, they should look at some basicprinciples. Ethics scholars often ar-gue that in order to justify an act, theactor must be willing to publicizeit—in other words, they must bewilling to justify the act publicly.6

Another theory proposes threerequirements an act must meet tohave integrity: “1) discerning whatis right and what is wrong; 2) actingon what you have discerned, even atpersonal cost; and 3) saying openlythat you are acting on your under-standing of right and wrong.”7 Thisthird step, acting openly, constitutes

May 1999 / 25

Ethical RestraintsCompared to those legitimate

instances when law enforcement of-ficials must intentionally deceivethe media, it becomes clear that noethical justification exists for thoseofficials who lie to avoid embar-rassment to another official or theiragency. No official who does sowould publicly defend such a deci-sion later, and may even go to greatlengths to avoid the deception everbecoming public knowledge.

Likewise, it becomes difficultto imagine law enforcement offi-cials desiring to publicly explainwhy they decided to deceive themedia in order to divert their inter-est in a pending investigation. Suchan action would threaten the FirstAmendment because public offi-cials would thwart a legitimatepress inquiry. Officials should onlyuse such a justification in the mostserious public safety issues, andeven in those instances, they mayconsider an appeal to the media todelay a story. The events prior to theapprehension of the Unabomberserve as an example of responsiblemedia outlets heeding such requestsin the interest of public safety.

The final rationale for inten-tional deception of the media is adesire to expand a pending investi-gation by distributing false infor-mation to a suspect. While practicalissues may force an official to de-cide that such deception may not bein the best interest of the law en-forcement mission, no basic ethicalprinciples exist that would abso-lutely prohibit such an act. As longas the official remains reason-ably willing to publicly defendsuch a decision, the ethical issues

justifying this type of deception arethe same as those for more tradi-tional forms of law enforcementdeception.

The Consequencesof the Decision to Lie

Law enforcement officialsshould weigh the consequences ofthe decision to use deception. Theresult that the deception might haveon the credibility of the law en-forcement organization with themedia and the public represents asignificant consequence that offi-cials must consider. Citizens, unlikesuspected criminals in certain situa-tions, have a right to expect the truthfrom public officials. Officialsshould view this right as more thana minor consideration in the balanc-ing of consequences. In some situa-tions, the consequences could provesignificant enough that the adminis-trator may decide not to use the de-ception. However, no one can co-herently argue that this rightremains absolute for all times andcircumstances.

In those cases where the officialdecides that all of the positive con-sequences of deception outweighall of the negative consequences,the official must then publicize thedeception after the fact. Even ifcriminal court proceedings do notforce the official to publicize thedeception, the official still has anethical obligation to do so. The offi-cial must consider the likely conse-quences of this public disclosure inthe decision process.

ConclusionLaw enforcement administra-

tors must think about more than justlaw enforcement objectives in de-ciding whether to use deception in-volving the media. The practicaland ethical considerations of such adecision extend beyond any one in-vestigation. In considering the ac-tions of the administrator illustratedin the narcotics undercover investi-gation, the ethical dilemma posesa significant problem. If the ad-ministrator does not publicize themedia deception once the case has

© Mark Ide


igital imaging technologies have been usedin a variety of scientific fields for decades,

Request for Assistance

concluded, most ethics scholarswould say that the deception wasnot ethical. If the administrator doespublicize the deception, the mediawill likely condemn the deceptionand will certainly be less trusting ofthe next press release issued fromthe department. Either way, admin-istrators pay a price—ethics orcredibility. Law enforcement ad-ministrators should explore ways ofhandling these ethical dilemmasin a way that keeps the cost to aminimum.

Endnotes1 The Ethical Principals of the American

Society of Newspaper Editors, Article IV,provides in part, “Every effort must be made toinsure the news content is accurate. . . .”Similar provisions appear in the AssociatedPress Managing Editors Code of Ethics andThe Society of Professional Journalists SigmaDelta Chi Code of Ethics.

2 The Federal Bureau of Investigation doesnot advocate the intentional deception of thenews media.

3 Edwin J. Delattre, Character and CopsEthics in Policing Third Edition, (Washington:The AEI Press, 1996), 162.

4 For a discussion of the general ethicalissues surrounding the use of deception by lawenforcement, see Jerome H. Slotnick,

“Deception by Police” Criminal Justice Ethics,Vol. 1, Number 2, Summer/Fall 1982, 40-54;Delattre, Ibid, 160-173; and John Kleinig, TheEthics of Policing, (Cambridge: CambridgeUniversity Press, 1996), Chapter 7.

5 In 1990, Clay County, Arkansas, SheriffDarvin Stowe gave media outlets a false storythat an attorney had been assaulted in order todeceive a suspect into believing that the assaulthad been performed pursuant to a payment bythe suspect to an undercover officer. Law andOrder, Vol. 39 No. 1, January 1991, 4.

6 Sissela Bok, Lying, Moral Choice inPublic and Private Life, (New York: Vintage,1989) 92.

7 Stephen L. Carter, Integrity, (New York:HarperCollins, 1997), 7.

8 Supra note 3, 165.

Developing Law Enforcement Photography Guidelines

Dbut their application within the criminal justicesystem is relatively recent. Therefore, there is aneed to gather and disseminate accurate informa-tion regarding the proper application of these andother imaging technologies throughout the crim-inal justice system. In 1997, the FBI Laboratoryformed a group now identified as the “ScientificWorking Group on Imaging Technologies”(SWGIT), to address that need.

The group includes approximately 25 repre-sentatives from law enforcement agencies at thefederal, state, and local levels, as well as imagingscientists from academia. They have recentlycompleted a preliminary set of general guidelinesand recommendations relating to the use ofvarious imaging technologies by law enforcementprofessionals. This draft document is titled:“Definitions and Guidelines for the Use ofImaging Technologies in the Criminal JusticeSystem.” While this first document addresses law

enforcement imaging applications in the mostgeneral of terms, subsequent documents willfocus on different applications such as crimescene photography and surveillance photography.

The purpose of this notice is to request yourassistance in the development of these guidelines.This document is available for review on theInternet via the FBI home page as part of the FBILaboratory’s electronic journal “Forensic ScienceCommunications.” To view the document there,access the FBI home page at www.fbi.gov, clickon Science and Technology, and select ForensicScience Communications. Individuals with accessto Law Enforcement On-line (LEO) can also findthis document via links at the SWGIT specialinterest group location.

If you are interested in responding, please doso prior to June 1, 1999. Instructions for submit-ting comments are included with the document.The SWGIT will incorporate the responsesgenerated by this draft prior to issuing a finalversion of this document.

May 1999 / 27

Legal Digest

atrick Knowles was stoppedfor speeding by a police of-ficer in Newton, Iowa. The

Search Incident to ArrestAnother LookBy THOMAS D. COLBRIDGE, J.D.

and pot pipe as fruits of an unconsti-tutional search. His motion was de-nied by the trial court, and he wasconvicted. Knowles appealed. Hisappeal set in motion a review pro-cess culminating in arguments be-fore the U.S. Supreme Court regard-ing the scope of police authority tosearch someone incident to arrest.The Supreme Court recently deliv-ered its unanimous opinion on thematter.2 This article reviews the de-velopment of federal constitutionallaw regarding search incident to

arrest, including Iowa’s interpreta-tion of an officer’s authority tosearch incident to arrest that led tothe Supreme Court’s review of theissue.

SEARCH AND SEIZUREFOURTH AMENDMENTBASICS

The Fourth Amendment to theU.S. Constitution prohibits unrea-sonable searches and seizures bygovernment agents.3 The SupremeCourt has defined a search as a

Pofficer issued Knowles a citation,although he had the option underIowa law to arrest him. The officerthen conducted a thorough search ofKnowles’ car. He found a bag ofmarijuana and a “pot pipe.”Knowles was arrested and chargedunder Iowa’s controlled substancesstatutes.1

Prior to his trial, Knowlesmoved to suppress the marijuana

© Mark Ide


government infringement into aperson’s reasonable expectation ofprivacy.4 A reasonable expectationof privacy exists when a person ac-tually believes that his activity willbe private and that belief is reason-able; or in other words, when theperson’s subjective expectation ofprivacy is objectively reasonable.5

The Fourth Amendment pro-hibits only unreasonable searchesby the government. What makessome searches reasonable and oth-ers unreasonable? The SupremeCourt’s answer is simple: any gov-ernment search conducted without asearch warrant is per se unreason-able, unless the government canjustify its search as one judiciallyexcepted from this warrant require-ment.6 This rule arises from the Su-preme Court’s preference that theexistence of probable cause tosearch be determined by a neutralthird party, the magistrate, ratherthan the police officer.7

However, not all searches canor should be subject to this warrantrequirement. Consequently, the Su-preme Court has recognized some

exceptions: consent searches;8

emergency searches;9 motor vehiclesearches;10 inventory searches;11

and searches incident to arrest.12

The search incident to arrest excep-tion to the warrant requirement isthe issue in the Knowles v. Iowacase.13

THE HISTORY OF SEARCHINCIDENT TO ARREST

American courts have long rec-ognized a police officer’s authorityto search individuals without a war-rant incident to their arrest. In the1867 case of Closson v. Morrison14

the New Hampshire Supreme Courtcited an even older Vermont case15

for the proposition that an officer isauthorized to search a person with-out a warrant for weapons andmeans of escape incident to arrest.In 1914, the U.S. Supreme Courtrecognized the same authority.While discussing the government’sargument in the case before it, theCourt said:

“It is not an assertion of theright on the part of the govern-ment, always recognized under

English and American law, tosearch the person of theaccused when legally arrested,to discover and seize the fruitsor evidences of crime. Thisright has been uniformlymaintained in many cases.”16

However, a warrantless searchincident to arrest may only be con-ducted if the arrest itself is lawful.17

That means that the arrest is basedupon probable cause to believe theperson arrested committed acrime,18 and is accomplished with-out violating the Fourth Amend-ment. The Fourth Amendment re-quires, absent consent or anemergency, that police have at leastan arrest warrant and probablecause to believe a subject is insidesomeone’s home, before they mayenter it to arrest that individual.19

The Amendment also requires asearch warrant naming the arresteeas the object of the search, beforethey may enter a third party’s home,absent consent or an emergency, toarrest a wanted person.20

The right of an officer to searchincident to an arrest is not limitedto situations where weapons orevidence of the crime are likelyto be found. In United States v.Robinson,21 the Supreme Courtmade it clear that the authority toconduct the warrantless search inci-dent to arrest does not depend on“what a court may later decide wasthe probability...that weapons orevidence would, in fact, befound....”22 The Court reasoned thatsince a probable cause arrest isa reasonable Fourth Amendmentintrusion, a search incident to thatarrest “requires no additionaljustification.”23

“

”

Mere probablecause to arrest, or

the citation processalone, are not

sufficient to justifythe [warrantless]

search.

Special Agent Colbridge is a legalinstructor at the FBI Academy.

May 1999 / 29

The Scope of SearchIncident to Arrest

While the authority to conducta warrantless search incident to ar-rest has a long history, the issue ofwhere the officer is permitted tosearch has been a matter of muchdebate. The officer clearly is en-titled to search the body of a pris-oner, as well as items such as awallet or purse that are immediatelyassociated with the arrestee.24 Thiswarrantless search of the person fol-lowing an arrest was explicitly au-thorized in several state cases dur-ing the 19th century,25 as well asvirtually all of the U.S. SupremeCourt cases dealing with the issue.26

An arresting officer is also au-thorized to conduct an area searchwhen arresting someone. The sizeof this area search has changed overthe years. In 1925, the SupremeCourt described the area search thisway:

“When a man is legallyarrested for an offense, what-ever is found upon his personor in his control which it isunlawful for him to have andwhich may be used to provethe offense may be seizedand held as evidence in theprosecution.”27

Shortly thereafter, the Court ex-panded the concept of the area “inhis control” to “the place where thearrest is made....”28 The broadestscope of this area search was ex-pressed in Harris v. United States,29

decided in 1947, and United Statesv. Rabinowitz30 decided in 1950. InHarris, officers arrested the defen-dant in the living room of his fourroom apartment and proceeded tosearch the entire apartment.

evidence that was used at his trialover his objection. He was con-victed and appealed. The SupremeCourt decided that the officers hadconducted an unconstitutionalsearch. The Court said that the war-rantless search incident to arrestshould be limited to a search of theperson arrested, as well as “the areainto which an arrestee might reachin order to grab a weapon or eviden-tiary items....”32 The Court ex-pressly overruled the expansivedefinition of the “area within thecontrol” of the arrestee used in theHarris and Rabinowitz cases, andlimited the area search to wherever

the arrestee “might gain posses-sion of a weapon or destructibleevidence.”33

In cases since Chimel, the Su-preme Court has further defined thisarea search incident to arrest. Whenan officer arrests an occupant of anautomobile, the interior passengercompartment of that automobilemay be searched incident to arrestas well as any open or closed con-tainers found inside.34 In 1990, theSupreme Court expanded the areasearch incident to an arrest inside abuilding to include a search of im-mediately adjoining areas forpeople posing a threat to the arrest-ing officers.35

The area within the arrestee’simmediate control is defined as ofthe time of arrest, not the time of thesearch.36 Defendants often arguethat once they have been movedfrom the scene of the actual arrest,police no longer have the authorityto search that area since it is nolonger within the arrestee’s control.The Supreme Court and federalcircuit courts have rejected thisargument.37

The Timing of SearchIncident to Arrest

When must the search incidentto arrest be conducted? Clearly, thesearch must occur incident to thearrest, but the actual timing is noprecise matter. Searches occurringbefore formal arrest are incident tothe arrest so long as probable causeto arrest existed prior to thesearch.38

The timing of the search inci-dent to arrest varies accordingto what is being searched. If theofficer is searching the person,

“The area within thearrestee’s immediatecontrol is defined asof the time of arrest,not the time of the

search.

”

Rabinowitz was arrested in his oneroom office and arresting officersthen searched the office desk, safe,and file cabinets for an hour and ahalf. The Supreme Court approvedboth searches as incident to arrest.

The expansion of the areasearch incident to arrest abruptlyended in 1969 with the case ofChimel v. California.31 Chimel wasarrested in his home for burglary.Incident to that arrest, officerssearched his entire three-bedroomhome, including the attic, garage,and small workshop. They seized


clothing, or personal effects of thearrestee, the search is likely to beupheld even if done hours after thearrest.39 This permissible timeframe is not limitless, however.While the justification for thesearch will last for a reasonabletime after the item is seized bypolice, there cannot be indefinitedelay.40

The courts are not as flexible,however, when reviewing areasearches of automobiles or roomsincident to arrest. Those searchesmust be “contemporaneous with”the arrest.41 One court has statedthat such area searches must be con-ducted “at about the same time asthe arrest.”42 It does not matter thatthe arrestee has been removed fromthe area so long as the search isrestricted to the area within hisimmediate control at the time ofthe arrest, and events occurringafter the arrest but before thesearch do not render the searchunreasonable.43

The timing of a lawful searchincident to arrest must be judgedwith an eye toward the realities oflaw enforcement. As the court saidin United States v. Nelson:44

“...[police officers] need notreorder the sequence of theirconduct during arrest simply tosatisfy an artificial rule thatwould link the validity of thesearch to the duration of therisks. Pragmatic necessityrequires that we uphold thevalidity and reasonablenessof the search incident to arrestif the search is part of thespecific law enforcementoperation during which thesearch occurs.”

arrest.46 The Supreme Court hasspecifically rejected attempts tolimit searches incident to arrest onlyto evidence of the crime for whichthe arrest was made.47

IOWA’S SEARCH INCIDENTTO CITATION LAW

The issue before the SupremeCourt in Knowles v. Iowa48 wasIowa’s expansion of the warrantlesssearch incident to arrest to the war-rantless search incident to a cita-tion. Iowa has a law that permits itspolice officers to immediately ar-rest traffic violators and take themto a magistrate.49 State law also per-mits Iowa officers to issue a citationin lieu of arrest if the person wouldbe eligible for bail.50 Iowa law also

provided that the issuance of thecitation in lieu of an arrest did not“affect the officer’s authority toconduct an otherwise lawfulsearch.”51 The Iowa Supreme Courtinterpreted this statutory scheme asauthorization for its police officersto conduct a search, having thesame scope as the search incident toarrest recognized by the federalConstitution, whenever officershave probable cause to arrest, butchoose, instead of arresting the vio-lator, to issue a citation.52 The IowaSupreme Court reasoned that thesearch incident to arrest authority istriggered not by the physical act ofthe arrest, but by the establishmentof probable cause to make the ar-rest.53 In Iowa, then, when a policeofficer chose to issue a citation inlieu of arrest, he was authorized toconduct a search since he had therequisite probable cause to arrest. Itwas this theory of the search inci-dent to citation that the Iowa courtsused to sustain the search ofKnowles’ vehicle.

THE KNOWLES’ CASE

The facts in the case of Knowlesv. Iowa are simple. When the policeofficer stopped Knowles, he hadprobable cause to believe Knowleshad violated traffic laws. He couldhave arrested Knowles for that vio-lation, but chose instead to issue acitation. The officer searchedKnowles’ car based solely uponIowa’s statutory search incident to acitation exception to the warrant re-quirement; he had neither consentnor probable cause to conduct thesearch. In arguments on the motionto suppress, Knowles argued thatIowa’s search incident to citation

“The Supreme Courtruled Iowa’s searchincident to citation

exception to theFourth Amendment

unconstitutional.

”

The Object of SearchIncident to Arrest

What is an arresting officer per-mitted to look for during a searchincident to arrest? Courts have longagreed that arresting officers maysearch the arrestee and the immedi-ate area for weapons of any kindand for any object that could aid thearrestee’s escape.45 Evidence ofcrime—any crime— is also a legiti-mate object of the search incident to

May 1999 / 31

theory violated the Fourth Amend-ment of the federal Constitution,which requires that a person be ar-rested before a search incident toarrest may occur. The state arguedthat the search was justified solelyby the officer’s probable causeto arrest Knowles for the trafficinfraction.

In an unanimous decision, theU.S. Supreme Court agreed withKnowles. Citing United States v.Robinson,54 the Court noted twohistorical rationales for the searchincident to arrest—disarming thesubject and preserving evidence fortrial. Regarding the first rationale,officer safety, the Court believedthere is less danger to an officerissuing a citation than to an officermaking a custodial arrest. In theCourt’s view, a person receiving acitation is less likely to be hostilethan one being arrested. In addition,there is less contact between officerand citizen in the citation situation,exposing the officer to less danger.

Regarding the second rationale,preventing the destruction of evi-dence, the Court said that in thiscase there was little likelihood thatthe officer would have found addi-tional evidence of the speeding of-fense. The state of Iowa argued thatanyone who is stopped for a trafficviolation may destroy evidence ofother crimes, but the Supreme Courtsimply said the possibility that anofficer would stumble onto suchevidence of other crimes during atraffic stop “seems remote.”55

The Supreme Court ruledIowa’s search incident to citationexception to the Fourth Amend-ment unconstitutional. It concludedthat the search incident to arrest ex-ception to the Fourth Amendment is

THE VEHICLE EXCEPTIONUNAFFECTED BY KNOWLES

The Knowles opinion had noimpact upon the long recognizedvehicle exception to the FourthAmendment warrant requirement.The vehicle exception permits anofficer to search a motor vehiclewithout a search warrant when hehas probable cause to believe evi-dence or contraband will be foundinside.56 The scope of this warrant-less search is the same as a searchwarrant would authorize.57

The parties in the Knowles caseall agreed that the officer who con-ducted the search had no probablecause to believe there was evidenceor contraband in Knowles’ car, andthat the officer was relying entirelyupon statutory authorization to con-duct the search.58 Consequently, the

motor vehicle exception was neveran issue before any court during thelife of this case. The motor vehicleexception is alive and well inAmerican jurisprudence.

CONCLUSIONThe Supreme Court has recog-

nized a police officer’s authority toconduct a warrantless search inci-dent to a lawful custodial arrest.The scope of the search includes theperson of the arrestee, personalitems in his possession, the area intowhich the arrestee could reach atthe time of arrest to retrieve aweapon, any means of escape, ordestructible evidence, as well as asearch of immediately adjoining ar-eas for people posing a threat. Thetiming of the search of the personand personal items is fairly flexible;the area searches should be contem-poraneous with the arrest. The ob-jects of the search incident to arrestare weapons, any means of escape,and evidence of any crime the ar-restee could destroy. This authorityis predicated upon the dual con-cerns of officer safety and preserva-tion of evidence for trial.

In Knowles v. Iowa, the Su-preme Court emphasized that thewarrantless search incident to arrestis triggered only by a lawful custo-dial arrest. Mere probable cause toarrest, or the citation process alone,are not sufficient to justify thesearch. This decision is consistentwith the Court’s long-held positionthat any police search should beconducted with a warrant, autho-rized by a neutral and detachedmagistrate, unless the officer canjustify the search under a recog-nized exception to the rule.59 Be-cause the Supreme Court favors the

a bright-line rule, justified only by alawful, full custodial arrest, andbased upon a concern for officersafety and for the loss of evidence.It refused Iowa’s invitation to ex-tend the bright-line rule to a situa-tion where, in its opinion, neitherconcern exists.

© Mark Ide

Law enforcement officers of other thanfederal jurisdiction who are interested inthis article should consult their legaladvisors. Some police procedures ruledpermissible under federal constitutional laware of questionable legality under state lawor are not permitted at all.


37 New York v. Belton, supra note 34; UnitedStates v. Hudson, supra note 33; United Statesv. Abdul-Saboor, 85 F.3d 664 (D.C. Cir. 1996).

38 Rawlings v. Kentucky, 448 U.S. 98(1990); United States v. Bizier, 111 F.3d 214(1st Cir. 1997); United States v. Anchondo, 156F.3d 1043 (10th Cir. 1998).

39 United States v. Edwards, 415 U.S. 800(1974).

40 United States v. Chadwick, 433 U.S. 1(1977); United States v. Nelson, 102 F.3d 1344(4th Cir.1996), cert denied 117 S. Ct. 1567(1997).

41 United States v. Belton, supra note 34;United States v. Abdul-Saboor, supra note 37.

42.United States v. Hudson, supra note 33,quoting United States v. Turner, 926 F.2d 883(9th Cir. 1991), cert. denied 502 U.S. 830(1991).

43 Id.44 Supra note 40, at page 1347.45 See Closson v. Morison, supra note 14;

United States v. Robinson, supra note 12.46 United States v. Robinson, supra note 12.47 Id.48 Supra note 2.49 Iowa Code Annotated, Section 321.485

(1)(a)(West Supp. 1997).50 Iowa Code Annotated, Section

805.1(1)(West Supp. 1997).51 Iowa Code Annotated, Section

805.4(West Supp. 1997).52 State v. Becker, 458 N.W.2d 604 (IA

1990); State v. Meyer, 543 N.W.2d 876 (IA1996).

53 State v. Doran, 563 N.W.2d 620 (IA1997).

54 Supra note 12.55 Supra note 2.56 Carroll v. United States, 267 U.S. 132

(1925); United States v. Patterson, 140 F.3d767 (8th Cir. 1998), cert. denied 119 S. Ct. 245(1998).

57 United States v. Ross, 456 U.S. 789(1982); California v. Acevedo, 111 S. Ct. 1982(1991).

58 Supra note 2. 59Katz v. United States, supra note 4.

use of search warrants by police of-ficers, the justices are hesitantto discourage their use by creat-ing new exceptions to the ruleor expanding exceptions alreadyrecognized.

Endnotes1 He was charged with violating Iowa Code

section 124.401(3)(1995): possession of aSchedule I Controlled Substance (marijuana);and section 124.402(1)(e): keeping a controlledsubstance in an automobile.

2 Knowles v. Iowa, 119 S. Ct. 484 (1998);1998 WL840933 (U.S. Iowa).

3 U.S. Constitution Amendment IV reads:“The right of the people to be secure in theirpersons, houses, papers, and effects againstunreasonable searches and seizures shall not beviolated, and no Warrants shall issue but uponprobable cause, supported by Oath oraffirmation, and particularly describing theplace to be searched and the persons or thingsto be seized.”

4 Katz v. United States, 389 U.S. 347(1967).

5 Id. at 361 (J. Harlan, concurring).6 Id. at 357.7 Id. at 356.8 Schneckloth v. Bustmonte, 412 U.S. 218

(1973); Ohio v. Robinette, 117 S. Ct. 417(1996).

9 Schmerber v. California, 384 U.S. 757(1966); Cupp v. Murphy, 412 U.S. 291 (1973).

10 Carroll v. U.S., 267 U.S. 132 (1925);California v. Acevedo, 111 S. Ct. 1982 (1991).

11 South Dakota v. Opperman, 428 U.S. 364(1976); Florida v. Wells, 495 U.S. 1 (1990).

12 United States v. Robinson, 414 U.S. 218(1973).

13 Supra note 2.14 47 N.H. 482 (1867).15 Spalding v. Preston, 21 Vt. 9 (1848).16 Weeks v. United States, 232 U.S. 383, 392

(1914).17 United States v. Robinson, supra note 12;

United States v. Anchondo, 156 F.3rd 1043(10th Cir. 1998).

18 Henry v. United States, 361 U.S. 98(1959).

19 Payton v. New York, 445 U.S. 573 (1980).20 Steagald v. United States, 451 U.S. 204

(1981).21 United States v. Robinson, supra note 12.22Id. at 235.23 Id.

escape: United States v. Han, 74 F.3d 537 (4thCir. 1996), cert. denied 517 U.S. 1239 (1996);United States v. Hudson, 100 F.3d 1409 (9thCir. 1996), cert. denied 118 S. Ct. 353 (1997).Locked containers are likely not included inthe rationale of the search incident to arrest,but the Supreme Court has not resolved theissue. Officers should consult their LegalAdvisors.

34 New York v. Belton, 453 U.S. 950 (1981).The Supreme Court has not resolved the issueof whether or not locked containers may beopened incident to arrest. Officers shouldconsult with their legal advisors regarding thisissue.

35 Maryland v. Buie, 494 U.S. 325 (1990).36 In Re Sealed Case, 153 F.3d 759 (D.C.

Cir. 1998).

24 United States v. Passaro, 624 F.2d 938(9th Cir. 1980), cert. denied 449 U.S. 1113(1980); Curd v. City of Judsonia, Ark., 141F.3d 839 (8th Cir. 1998).

25 Supra notes 14 and 15.26 See, e.g., Weeks v. United States, supra

note 17; Carroll v. United States, 267 U.S. 132(1925); Chimel v. California, 395 U.S. 752(1969); United States v. Robinson, 414 U.S.218 (1973); Maryland v. Buie, 494 U.S. 325(1990)

27 Carroll v. United States, 267 U.S. 132,158 (1925).

28 Agnello v. United States, 269 U.S. 20(1925); Marron v. United States, 275 U.S. 192(1927).

29 331 U.S. 145 (1947).30 339 U.S. 56 (1950).31 395 U.S. 752 (1969).32 Id. at 763.33 Id. This area search includes open,

unlocked containers found within the area thatcould hold weapons, evidence, or means of

“...the Supreme Courtemphasized that thewarrantless searchincident to arrest istriggered only by a

lawful custodial arrest.

”

The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face eachchallenge freely and unselfishly while answering the call to duty. In certain instances, their actionswarrant special attention from their respective departments. The Bulletin also wants to recognizetheir exemplary service to the law enforcement profession.

Officer Octaveious Miles of the Detroit, Michigan, Police Departmentreceived a radio broadcast concerning the pursuit of a stolen vehicle. Because hewas nearby, Officer Miles proceeded to the location and observed the speedingvehicle approach an intersection where a group of schoolchildren were crossingthe street. As he realized that the vehicle was not going to stop, Officer Milespulled his patrol car into its path. The speeding vehicle slammed into the cruiser.All the children were unharmed, but Officer Miles had to be pried from hispatrol unit. He was treated for his injuries at a local hospital and released. Otherofficers arrested the driver at the scene. Without regard for his own safety,Officer Miles placed himself in harms way to save the schoolchildren fromcertain injury or death.Officer Miles

Officer Struve

Officer Michael Struve of the Wyoming, Michigan, Police Department wasoff duty at a local water park when his daughters told him that they saw a youngmale on the bottom of the pool. Officer Struve found the male submerged inabout 6 feet of water, pulled him out of the pool, and began resuscitative efforts.As this victim began breathing, Officer Struve’s son told him that another youngmale was lying on the bottom of the pool. Officer Struve alerted life guards whorescued the second victim. Both young men survived due to the prompt actionsof Officer Struve and his children.

Investigator Ward

During the early morning, while driving on an interstate, off-duty PatrolInvestigator James Ward of the Lakewood, Ohio, Police Department came uponan automobile accident. Smoke was coming from the vehicle, which had strucka center guard rail after the driver apparently had fallen asleep. InvestigatorWard and another passing motorist rescued the driver moments before the carburst into flames. Despite the high-speed traffic and dark conditions, Investiga-tor Ward carried the victim to safety on the side of the highway and adminis-tered first aid until emergency services arrived. Investigator Ward’s unselfishand courageous actions saved the driver’s life.

volume 68 number 5

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