Você está na página 1de 35

June 2005

Volume 74
Number 6
United States
Department of Justice
Federal Bureau of Investigation
Washington, DC 20535-0001
Robert S. Mueller III
Director

Contributors’ opinions and statements Features


should not be considered an
endorsement by the FBI for any policy,
program, or service.

The attorney general has determined The Law Enforcement A robust intelligence capacity can
that the publication of this periodical is
necessary in the transaction of the
Intelligence Function 1 help law enforcement agencies share
information and fulfill their mission
public business required by law. Use By David L. Carter as society’s protectors.
of funds for printing this periodical has
been approved by the director of the
Office of Management and Budget.
The FBI Law Enforcement Bulletin Activity-Based Budgeting This budget type can link activities to
(ISSN-0014-5688) is published
monthly by the Federal Bureau of
Investigation, 935 Pennsylvania
By Jon M. Shane 11 expenses, giving executives a better
understanding of the full costs of service
Avenue, N.W., Washington, D.C. and resource allocation.
20535-0001. Periodicals postage paid
at Washington, D.C., and additional
mailing offices. Postmaster: Send
address changes to Editor, FBI Law The Supreme Court Brings Courts consider a number of factors
Enforcement Bulletin, FBI Academy,
Madison Building, Room 201,
Quantico, VA 22135.
an End to the “End Run” 26 when determining whether suspects
subjected to two-tiered interrogation
Around Miranda tactics have waived their Miranda rights
By Lucy A. Hoover knowingly, intelligently, and voluntarily.
Editor
John E. Ott
Associate Editors
Cynthia L. Lewis
David W. MacWha
Bunny S. Morris
Departments
Art Director
Denise Bennett Smith
Assistant Art Director 10 Book Review 24 ViCAP Alert
Stephanie L. Lowe Police Traffic Stops Unidentified Homicide Victim
and Racial Profiling
This publication is produced by 25 Unusual Weapon
members of the Law Enforcement FM Radio
Communication Unit, Training and
Development Division.

Internet Address
leb@fbiacademy.edu

Cover Photo
© Digital Stock

Send article submissions to Editor,


FBI Law Enforcement Bulletin,
FBI Academy, Madison Building,
Room 201, Quantico, VA 22135.

ISSN 0014-5688 USPS 383-310


© Digital Vision

The Law Enforcement


Intelligence Function
State, Local, and Tribal Agencies
By DAVID L. CARTER, Ph.D.

L
aw enforcement intelli- Sharing Plan (NCISP), state, serve as the department’s
gence has changed local, and tribal law enforce- intelligence contact point, as
dramatically since the ment organizations have begun well as the conduit to dissemi-
terrorist attacks of September to revisit their roles in intelli- nate information to those who
11, 2001. Fueled by the need gence processes. Agencies that need it.
for more widespread informa- have intelligence units should The foundation of develop-
tion sharing and a higher quality reexamine their operating ing an intelligence capacity
of intelligence for counterterror- policies and guidelines to rests on understanding its role
ism, these reforms also have ensure consistency with na- in the overall mission of the
helped law enforcement agen- tional standards, contemporary organization. ILP serves as the
cies investigate criminal enter- laws, and current acceptable contemporary model for this
prises and prevent crimes of all practices. Those without such function.1 Emerging as a con-
types. units need to develop some type cept following an International
With the development of of intelligence capacity, even if Association of Chiefs of Police
the intelligence-led policing it consists of only one person (IACP) summit on intelligence
(ILP) philosophy and its oper- trained to understand the lan- and information sharing, ILP
ationalization through the guage, processes, and products seeks to provide guidance on
National Criminal Intelligence available. This individual can operational activities based on

June 2005 / 1
“ The foundation
of developing an
intelligence capacity
agencies, addressing the con-
cerns expressed by citizens
on matters of privacy and the
expression of free speech, and
accomplishing these objectives
rests on understanding in a relatively short time frame.
its role in the overall
mission of the PURPOSE SERVED
organization. In the purest sense, intelli-


gence is the product of an
analytic process that evaluates
information collected from
Dr. Carter teaches at Michigan State University’s
School of Criminal Justice in East Lansing. diverse sources, integrates the
relevant data into a cohesive
package, and produces a conclu-
sion or estimate about a crimi-
empirical evidence objectively rather than being an undefined nal phenomenon by using the
assessed and analyzed. 2
tangential activity as was too scientific approach to problem
As the community policing often the case in the past. solving (i.e., analysis). Thus,
philosophy evolved by embrac- Of course, any concept intelligence, a synergistic
ing problem solving and, most must be translated to practice product, can provide meaning-
recently, Compstat, it became to have an effect. As a result, ful and trustworthy direction to
clear that law enforcement the NCISP serves as a blueprint law enforcement decision
agencies could effectively for administrators to promote makers about complex unlawful
manage crime and disorder in intelligence sharing while, at the activities, including criminal
their communities by basing same time, protecting citizens’ enterprises and extremists, as
their operations on an analysis constitutional rights. The plan well as terrorists.
of empirically collected data on establishes standards for main- Essentially, an intelligence
3
trends of concern. While analy- taining records, training person- function within a law enforce-
sis (including Compstat) tends nel, developing information- ment organization serves two
to concentrate on street crimes sharing partnerships, and broad purposes. The first in-
and burglaries within a jurisdic- generally enhancing the ability volves prevention (tactical
tion, ILP focuses on complex, of the law enforcement commu- intelligence). This includes
multijurisdictional crime and nity to prevent terrorism and gaining or developing informa-
terrorism. Like community organized crime through a tion related to threats of terror-
policing, ILP is proactive, robust intelligence capacity. ism or crime and using this
giving operational guidance The emergence of ILP and information to apprehend
and, hence, using resources the NCISP significantly en- offenders, harden targets, or
more efficiently and effectively. hanced the law enforcement employ strategies that will
Importantly, ILP provides intelligence function. The eliminate or mitigate the threat.
philosophical integration of challenge now centers on The second purpose covers
intelligence activities within implementing these initiatives planning and resource allocation
law enforcement operations, in America’s law enforcement (strategic intelligence). The

2 / FBI Law Enforcement Bulletin


intelligence function provides permitting inquiries to proceed members of the public have
information to decision makers for purposes of community begun to scrutinize law enforce-
about the changing nature, safety.5 These guidelines also ment intelligence operations.
characteristics, and methodolo- facilitate accurate and secure Moreover, modern police
gies of threats, as well as information sharing because the managers insist on careful
emerging threat idiosyncrasies, nature of terrorism and criminal accountability in the intelli-
so they can develop response enterprise threats are inherently gence function because of the
strategies and reallocate re- multijurisdictional. Further, if responsibility to uphold citi-
sources as necessary to accom- law enforcement organizations zens’ rights, as well as to reduce
plish effective prevention. at all strata of government exposure to liability.
While investigation clearly subscribe to the same guide-
constitutes part of the informa- lines, they can increase informa- Criminal Predicate
tion collection process, the tion sharing because they know Lessons learned from a
intelligence function often is that the security and integrity of legacy of lawsuits against
more exploratory and broadly the records will remain intact. intelligence units dating back to
focused than a criminal investi- the 1960s clearly demonstrate
gation, per se.4 For example, a that departments cannot collect


law enforcement department information about individuals
may reasonably suspect that a and store it in an intelligence
person or group has the intent, Agencies must records system unless a criminal
capacity, and resolve to commit establish policies predicate exists. This often
a crime or terrorist act. How- with respect to what proves more difficult than it
ever, evidence may fall short of types of data they may appear. Individuals who
the probable cause standard, will impart and support an unpopular cause,
even concerning an arrest for to whom. have radical beliefs, or express
criminal attempt or conspiracy. an ideology that undermines


Moreover, a compelling com- America’s founding principles
munity safety reason may exist may be distasteful, but these
for keeping an inquiry open to actions fall within their consti-
identify other criminal offend- ACCOUNTABILITY tutionally protected rights. As
ers, notably leaders, and weap- FACTOR such, agencies may not keep
ons that they may use. Law enforcement agencies intelligence records on them,
Because of this broader must consider many factors in even ones personally held by
role, as well as the need to the development of an intelli- unit employees, unless a reason-
keep information secure and gence function; however, a able suspicion documented in
to maintain records on individu- number of contemporary issues the records system demonstrates
als where evidence of criminal rank as the “first among equals” that the individuals are involved
involvement is uncertain or in today’s environment. Part of in criminal activity.
tangential, law enforcement the reason lies in a well-publi-
agencies must abide by rigid Policies and Procedures
cized history of past abuses of
guidelines that protect the information collection and To ensure that intelligence
constitutional rights of citizens record keeping. As a result, files meet constitutional
while, at the same time, various watchdog groups and standards, law enforcement

June 2005 / 3
organizations must establish act, sometimes out of spontane- and ensuring that community
policies and procedures con- ity. Often more problematic— safety is not compromised.
cerning the collection, assess- for political, rather than legal, Information about demonstra-
ment, storage, dissemination, reasons—is an undercover tors may include—
and purging of criminal intelli- officer’s attendance at an open • personal data of each
gence records. Agencies that planning meeting of a protest member (e.g., name, age,
receive federal funding for a group to identify participants sex, race, ethnicity, and
multijurisdictional intelligence and assess the probability of residence);
records system must adhere to unlawful actions.
• group organization (Is there
the federal regulation 28 CFR
a parent or national group?
Part 23, which establishes


How formal is the structure?
guidelines for submitting and
What are the rules of the
entering data, securing the
Essentially, organization? What does
system, accessing the system
the organization condone
for inquiries, disseminating an intelligence and condemn with respect
information, reviewing records, function within a to demonstrations?);
and purging data. While the law enforcement
regulation exempts single- organization • the basis of their ideology
agency and nonfederally funded and what it teaches them;
serves two broad
systems, adhering to the stan- purposes. • their goals and what they
dard remains a sound practice, want to accomplish, includ-


especially as an affirmative ing changes to policy or law,
defense in a liability lawsuit making their cause known,
related to records keeping.6 disruption of society, or
On one hand, collecting destruction of enemies;
Collection Issues information on people in situa-
Permeating both the crimi- • their protest style, such as
tions where criminal activity is
nal predicate and records their history, stated plans,
only a possibility may violate
system concerns is the collec- and inferences from their
their civil rights if no crime
tion and retention of informa- informal network; and
occurs and the records remain
tion about people protesting on file. Conversely, not gather- • their mood, which can help
issues in support of positions ing it may be negligent should determine community safety
viewed as extreme that conceiv- community security become (Are they making or posing
ably may result in violence, compromised if violence or threats?).
criminal disorder, or property property damage emerges To best accomplish these
damage.7 In such cases, the from the event. goals, law enforcement organi-
existence of a criminal predicate Departments should collect zations should have clear
often is unclear. It proves information that relates to procedures and training in place
difficult, if not impossible, to establishing a criminal predi- to deal with these issues. The
determine when members of a cate, identifying and apprehend- following recommendations are
demonstration may continue a ing criminal law violators, perhaps the most restrictive
vocal, yet lawful, protest versus gathering evidence and wit- approach to information collec-
those who commit a criminal nesses to support prosecution, tion under these circumstances;

4 / FBI Law Enforcement Bulletin


however, they nonetheless criminal law violations in with the missing information
present an avenue to afford both the past while participating that a decision maker needs.9
the strictest protection of citi- in similar situations, these Defining a requirement is not
zens’ rights and the greatest records should include necessarily an easy process. It
precaution against liability. appropriate documentation. involves detecting the potential
• Agencies should have writ- • The records should fully threats (terrorist or criminal)
ten guidelines and training articulate any compelling within the jurisdiction and
on specific provisions of community safety issues. determining their veracity, as
substantive law, including well as identifying potential
elements of the offenses, targets in the area and assessing
which may arise from a their vulnerability. Throughout
protest or demonstration. this process, occasions will
arise when departments have
• They should instruct their
insufficient information to
personnel to make detailed
make judgments, thereby
documentation of observa-
encountering an intelligence
tions and actions that sup-
requirement. Threats will
port the elements of of-
change over time, obligating
fenses and to exclude First
agencies to make this process
Amendment expressions
consistent. While the effort may
and noncriminal statements.
appear laborious, it nonetheless
• Supervisors should approve provides the best use of re-
an information collection © PhotoDisc sources because it focuses on
plan, including each inci- true needs, not random or
dent wherein meetings are REQUIREMENTS nonessential information.
monitored, and review and AND PRODUCTS Law enforcement organiza-
approve reports. They Law enforcement depart- tions must report requirements
should purge information ments should focus on what in an easily understood manner
that does not support the they do not know. “The absence that specifically addresses the
elements of the offenses of evidence is not the absence need they fulfill. Hence, in the
or aid as evidence. of a threat.”8 Agencies define planning process, an intelli-
• Collection methods should intelligence requirements to gence unit should define its
use the least intrusive gain these new insights. If they products, a series of regularly
means available. develop new intelligence, they prepared intelligence reports
must transmit it in a consum- that have a specific format and
• Personnel should purge
able form to permit personnel— convey an intended message.
photographs and video
from the executive to the street
recordings not evidentiary Intelligence Products
officer—to make the best
in nature nor supportive of
decisions about how to deal To accomplish its goals, the
a criminal investigation.
with the threats. unit should place intelligence
• If a surveillance is based, in and critical information in a
part, on the fact that affiliate Intelligence Requirements format that maximizes the
groups or persons within the In essence, an intelligence consumption and use of the
group have committed requirement seeks to fill a gap knowledge. The report should

June 2005 / 5
Comparing Compstat and Intelligence-Led Policing

Compstat Commonalities Intelligence-Led Policing

• Single jurisdiction • Each has a goal of • Multijurisdiction


• Incident driven prevention • Threat driven
• Street crime and burglary • Criminal enterprises and
• Crime mapping • Each requires terrorism
• Organizational flexibility • Commodity flow; trafficking
• Consistent information and transiting logistics
• Time sensitive (24-hour
feedback and response input • Strategic
• Disrupt crime series (e.g., • A significant analytic
burglary ring) component • Disrupt enterprises
• Drives operations
• Patrol • Bottom-up driven with • Drives operations
respect to operational
• Tactical unit needs • JTTF
• Investigators • Organized crime investigations
• Task forces
• Analysis of offender MOs • Analysis of enterprise MOs

Note: Correlated goals and methodologies make both concepts complement each other.

identify the targeted consumer superfluous details. The types Without fixed, identifiable
(e.g., patrol officers, administra- of products will vary by the intelligence products, depart-
tors, or task force members), character of the department ments will waste efforts and
clearly convey the critical infor- (e.g., state/local, urban/rural, share information ineffectively.
mation, identify time param- or large/small), as well as the
eters wherein the intelligence is collection and analytic capacity Operational Intelligence
actionable, and provide recom- of unit personnel. As a general This information often
mendations for follow-up.10 rule, agencies may need only places law enforcement organi-
Intelligence products prove three specific reports: 1) those zations in a controversial
most useful when each has a that aid in the investigation and position. For purposes of com-
specific purpose; follows a apprehension of offenders; 2) munity safety, agencies need to
consistent, clear, and aesthetic ones that provide threat adviso- maintain information on some
format; and contains all of the ries to harden targets; and 3) people and organizations for
critical information that the those that assist with planning two reasons: 1) their potential
consumer needs without and resource allocation. to commit crimes and 2) their

6 / FBI Law Enforcement Bulletin


existence as bona fide threats, establish policies with respect Clearly, electronic network-
although the parameters often to what types of data they will ing provides the most efficient
prove difficult to specify. impart and to whom. Critical way to share information. With
Departments monitor and to appropriate dissemination is availability of secure e-mail
record actions and affiliations understanding which persons systems, as well as Intranets in
of these individuals to help have the right and the need to growing numbers of agencies,
prevent future crimes or to know, both within the agency dissemination has become faster
build a criminal case later. and externally. In some cases, and easier. The caveat, how-
Inherently problematic is the the occasion may arise for ever, is to ensure that the intelli-
idea of a future offense. What multiple versions of one prod- gence products contain essential
is the rationale for keeping uct. For example, a non- information and reach the
information on a person or sensitive public edition of a correct consumer. If reports
group who has not committed report could advise citizens of deluge law enforcement offic-
a crime, but might? Essentially, possible threats, whereas an- ers, the overload will have the
if a compelling interest for other would provide more same outcome as not sharing
community safety exists, law details to law enforcement information at all. That is, if
enforcement administrators can personnel. officers delete intelligence
make an effective argument to products without reading them,
maintain records on individuals then the effect becomes the


who threaten that safety as long same as not disseminating
as they can present reasonable them in the first place.
justification to show a relation- Without fixed,
ship to criminality. STANDARDS
identifiable intelligence AND INITIATIVES
In this type of intelligence, products, departments
a unit creates no product, per se, To create the most profes-
will waste efforts and sional and effective intelligence
but, instead, develops regularly
prepared and disseminated
share information function, law enforcement
operational records on people ineffectively. executives should consider
and groups who pose threats.11 adopting a number of standards


Departments must maintain an and initiatives. While most are
important, yet difficult, balance: not required, they nonetheless
ensuring that no violation of contribute to the efficacy of
constitutional rights occurred With dissemination of intelligence operations while
during the course of the process sensitive material, a depart- concomitantly protecting civil
while, at the same time, compil- ment should impose the third- rights and reducing liability.
ing a resource of credible agency rule, which means that • The philosophy of intelli-
information for legitimate any recipient of intelligence gence-led policing12
law enforcement purposes. cannot share the information
with another organization. • The tenets and standards of
DISSEMINATION This affords some degree of the Global Justice Informa-
PROCESS control and accountability, yet tion Sharing Initiative13
Obviously, dissemination allows the originating depart- • The standards of the Na-
represents the heart of informa- ment to waive the rule when tional Criminal Intelligence
tion sharing. Agencies must appropriate. Sharing Plan14

June 2005 / 7
• The guidelines for informa- • Defined activities designed Officials responsible for
tion and intelligence sharing exclusively to prevent and any aspect of law enforcement
of the Office of Domestic control crime with no operations must understand
Preparedness Guidelines for political, religious, or current intelligence initiatives
Homeland Security15 doctrinal purpose as they become part of the
• The guidelines of the Com- An intelligence unit does fabric of the overall security
mission on Accreditation for not need to incorporate all of of this country. Recognizing
Law Enforcement Agencies these factors verbatim. Rather, the importance of a robust
(CALEA) Standard 51.1.1 adherence to the spirit of the intelligence capacity can help
Criminal Intelligence16 standards as an overarching agencies work together to
philosophy that is operation- share information and fulfill
• The provisions of the Inter- their mission as society’s
alized via policy and procedures
national Association of protectors.
in a manner consistent with
Chiefs of Police (IACP)
local law will suffice.
Model Criminal Intelligence
Policy17 Endnotes
1
http://www.theiacp.org/documents/


• The standards of the pdfs/Publications/intelsharingreport%
Law Enforcement Intelli- 2Epdf
gence Bureau (LEIU) In essence,
2
http://policechiefmagazine.org/
Criminal Intelligence magazine/index.cfm?fuseaction=display_
an intelligence arch&article_id=137&issue_id=112003
File Guidelines18 Jon Shane, “Compstat Process,” FBI
requirement seeks 3

• The IACP Code of Ethics19 to fill a gap with the Law Enforcement Bulletin, April 2004,
or an agency-developed 12-21; “Compstat Design,” FBI Law
missing information Enforcement Bulletin, May 2004, 12-19;
articulated code of ethics that a decision and “Compstat Implementation,” FBI Law
• The IACP Code of Con- maker needs. Enforcement Bulletin, June 2004, 13-21.
duct20 or an agency-created
4
In the context of law enforcement
intelligence, investigation is the pursuit of


articulated code of conduct data based on leads and evidence associ-
• An agency-produced ated with a particularly defined act to
articulated statement identify and apprehend offenders for
CONCLUSION prosecution. Information collection is the
of values21 capture of data based on a reasonable
• The regulations of 28 CFR The terrorist attacks of suspicion of criminal involvement for use
Part 23 for its criminal September 11, 2001, brought in developing cases, identifying crime
intelligence records system22 the intelligence function of the trends, and protecting the community by
law enforcement community to means of intervention, apprehension, or
• The tenets of the Justice the forefront. Increased aware- target hardening.
Information Privacy
5
This includes information in an
ness of the need for compiling intelligence temporary file, as well as
Guidelines23 essential information on those noncriminal identifying information as
• The tenets for information who threaten the safety of all defined in 28 CFR Part 23.
system security defined in Americans has changed the
6
The File Guidelines prepared by the
Law Enforcement Intelligence Unit (LEIU)
the Applying Security profession’s role from solely may provide the best model for translating
Practices to Justice Informa- fighting crime and disorder to this regulation to policy and procedures.
tion Sharing Report24 include combating terrorism. The provisions of this model have

8 / FBI Law Enforcement Bulletin


withstood the test of challenges and are 10
For example, follow-up instructions 17
http://it.ojp.gov/process_links.jsp?
comprehensive in nature. See http:// may direct a patrol officer to complete a link_id=3774
www.leiu-homepage.org. field interview card, notify a special unit, 18
http://it.ojp.gov/process_links.jsp?
7
An extremist ideology is one in which conduct surveillance of the target, or take link_id=3773
a commonly accepted set of core beliefs safety precautions. 19
http://www.theiacp.org/documents/
are interpreted and often applied in a 11
Agencies must make distinctions index.cfm?fuseaction=document&document_type_
frequently literal manner, rather than a between people who make threats and id=1&document_id=95
spiritual one, and embodies attitudes and those who pose them. A person may pose 20
http://www.theiacp.org/documents/
values considered unreasonable and a threat without making one and vice index.cfm?fuseaction=document&document_
unacceptable to conventional doctrine. versa. This represents an intelligence type_id=1&document_id=94
8
From a presentation by FBI Executive requirement. 21
For one example, see the Santa Clara,
Assistant Director Maureen Baginski at 12
Supra note 1. California, Police Department’s Value
the Police Executive Research Forum 13
http://it.ojp.gov/topic.jsp?topic_id=8 Statements at http://www.scpd.org/
Conference on Intelligence, Washington, 14
http://it.ojp.gov/topic.jsp?topic_ value_statement.html.
DC, December 16, 2003. id=93 22
http://www.iir.com/28cfr/
9
From a presentation by FBI Executive 15
http://www.ojp.usdoj.gov/odp/docs/ 23
http://www.ncja.org/pdf/
Assistant Director Maureen Baginski at the ODPPrev1.pdf privacyguideline.pdf
Major City Chiefs Intelligence Command- 16
http://www.calea.org/newweb/ 24
http://it.ojp.gov/documents/asp/
ers Conference, Washington, DC, April 6, accreditation%20Info/descriptions_of_
2004. standards_approv.htm

Subscribe Now

June 2005 / 9
Book Review

Police Traffic Stops and Racial Profil- conclusion of each chapter. This allows the
ing by James T. O’Riley, Charles C. Thomas, reader an easy and quick review of specific
Publisher, Springfield, Illinois, 2002. references and comments to the chapter.
In Police Traffic Stops and Racial Profil- This book covers the necessary informa-
ing, the author provides a unique and compre- tion for all law enforcement agencies at each
hensive review of the literature, yet distills his level—city, county, state, and federal—that
research so that the critical information needed may need to address the ramifications of traffic
can be of great value to law enforcement orga- stops and racial profiling. A major strong point
nizations. The book’s broad definition of ra- about the book is a 38-page appendix, designed
cial profiling includes any actions “based upon in an outline format. It commences with the
racial or ethnic stereotypes and that have the first 5 pages of the New Jersey official joint
effect of treating minority motorists differ- application consent decree followed by 33
ently than nonminority motorists.” pages of the New Jersey decree concerning the
Much of this interesting and well-re- state police, a crucial guide for other law en-
searched text deals with departmentwide forcement administrators, managers, and first-
enforcement on civil rights laws under U.S. line supervisors.
Code 42, Section 14141, along with some In addition, the applicability of this book
drastic consequences for law enforcement ad- includes, but is not limited to, all law enforce-
ministrators should such a decree be levied. ment training academies, in-service training
In-depth, the author dissects the consent de- programs, police-civilian review boards, and
cree section and its application to the New fraternal orders of police. Furthermore, it is
Jersey State Police experience. recommended for policy and procedure writ-
An outstanding book, it presents reviews ers, prosecutors and defense attorneys
on the evolution of traffic stops versus consti- dealing with racial profiling cases, and appli-
tutional decisions by the U.S. Supreme Court cable members of the U.S. Department of
through the more recent decades. It also ad- Justice, U.S. Senate and House of Representa-
dresses both sides of the issues, including tives, state attorney general offices, and state
what the critics have to say about the concerns legislatures.
of racial profiling. Police Traffic Stops and Racial Profiling
The book contains six critical steps pro- was a distinct pleasure to read. It is well de-
posed for law enforcement administrators to signed and written in a comparative analysis
use in not violating racial profiling during traf- format that is understandable.
fic stops. These are supported by 20 outlined
areas that can impact departmental budgets if Reviewed by
law enforcement agencies are affected by an Major Larry R. Moore (Ret.)
imposed consent decree. U.S. Army Military Police Corps
The book design, in its distilled concept, Life Member, International Association of
addresses the core of issues and their re- Chiefs of Police
sponses with appropriate endnotes listed at the Knoxville, Tennessee

10 / FBI Law Enforcement Bulletin


Activity-Based Budgeting
Creating a Nexus Between
Workload and Costs
By JON M. SHANE, M.A.

A
© Adobe Image Library

t some point in their economy and answers the activities to expenses, giving
careers, executives will question, What is to be bought? executives a better understand-
need to develop a A program budget, directed at ing of the full costs of service
budget. Indeed, this represents a planning and effectiveness, and resource allocation.
primary responsibility. A budget responds to the inquiry, What is Activity-based budgeting is
is merely a plan described in to be achieved? And, a perfor- an outgrowth of activity-based
financial terms. Knowing which mance budget, disposed toward costing, similar to zero-based
budget plan to choose, however, management and efficiency, budgeting.2 This budget type
depends on what a manager replies to the query, What is to accounts for how staff members
needs to convey. Many budget be done?1 Each has its place allocate their efforts among
styles exist, each with a differ- depending upon the goal. How- activities. After calculating the
ent purpose. For example, the ever, one style, activity-based full cost of each task, managers
most common government budgeting, has gained popular- can establish mechanisms that
budget, the line-item style, is ity over the last few years link support functions to the
oriented toward control and because of its ability to link primary obligations of the

June 2005 / 11
organization—in a law enforce- reduce effort requirements for integrity and responsibility. In
ment environment, the main the activity;4 and, perhaps most recent years, efforts have begun
activities are the direct costs of important, arguing from an to make budgets more readable
program delivery (e.g., patrol informed, objective position and understandable. Activity-
services, investigations, tactical in favor of the organization’s based budgeting is transparent
operations, and traffic control).3 budget. To illustrate activity- and eliminates hidden costs.
By developing a comprehensive based budgeting, the author This allows a manager to see
activity-based budget, execu- presents the activities of a at a glance the most expensive
tives can create a clear nexus hypothetical police depart- activities and where to exercise
between workload and costs. ment’s patrol force to determine control.
Once they develop this, execu- the number of officers required One of the keys to account-
tives and managers can exercise to handle the workload; the ability involves the person
control in several ways by cost of salaries, materials, and assigned to handle the budget
assigning personnel based upon equipment; and the distribution having real control over the
a demonstrated need; expanding of time across three primary resources that take the form
or contracting personnel propor- categories of patrol work: calls of decision-making authority,
tionately as the need changes; for service, administrative information, and skills. After
uncovering waste and hidden duties, and proactive functions. all, managers “cannot be re-
costs; viewing which activities sponsible for a budget in which
are most and least expensive; ACCOUNTABILITY they have no authority to ap-
assessing the full efficiency of AND POLITICS OF prove expenditures.”5
the organization; identifying BUDGETING
places to cut spending; estab- Politics of Budgeting
Accountability Appropriations battles are
lishing a cost baseline that may
be influenced through process Being entrusted with public common. In fact, an executive
or technology changes that monies requires the utmost charged with budget implemen-
tation and control should expect
them from subordinates who
look to that person to exercise
leadership and to argue on their

“ Being
entrusted with
public monies
requires the utmost
behalf for what they need to
carry out their functions. In
preparing for battle, an execu-
tive will find it useful to know
that “budgets reflect choices
about what government will
integrity and and will not do; budgets reflect
responsibility. priorities—between police and
flood control, day care, and road


Captain Shane serves with the Newark, New Jersey, Police Department.
repair; budgets reflect the rela-
tive proportion of decisions
made for local and constituency
purpose and for efficiency and

12 / FBI Law Enforcement Bulletin


effectiveness and broader draft of roundtable discussions population density; age, sex,
public goals. [Most important], with several police chiefs from race, and ethnic composition;
public budgets are not merely around the country. Among the education levels; and per capita
technical managerial docu- different budget strategies they and median household income
ments; they also are intrinsically considered, using crime and can support a budget proposal.
and irreducibly political.”6 workload data was first on the
Because their budgets are list.8 Earlier research revealed Justification
politically driven, executives that “increased workload was Budget strategies and their
should understand elected the second greatest factor attendant analysis are important,
leaders’ platforms, often mutu- contributing to an increase in but justification remains the
ally beneficial when seeking positions.”9 While not infallible, primary ingredient to the suc-
funds. The police department cess of the agency’s budget. A
must compete with the other solid justification includes all of


elements of city government the relevant information for the
for limited funds, making it legislative body, the budget
of paramount importance for Budget strategies office, and the city’s chief
its leader to prepare a sound and their attendant executive. The department
budget justification. should justify the budget in
analysis are three separate spending catego-
SUCCESSFUL important, but ries: mandatory, base, and
STRATEGIES AND justification remains discretionary.
JUSTIFICATION the primary ingredient
to the success of the Mandatory Expenditures
Strategies agency’s budget. Federal, state, or local laws
Strategies differ from govern mandatory expenditures,
justifications. A strategy is an such as social security, pen-
approach, a careful plan or
method, or the art of devising or
employing plans toward a goal.
A justification means to prove
or show to be just, right, or
reasonable or to show to have
had a sufficient legal reason.7
The chief executive’s goal is to
discussed by PERF included”
workload data is reasonable and
objective. The other strategies

“capitalize on sensational crime


incidents (ideally, not occurring
locally), carefully mobilize
sions, unemployment contribu-
tions, and contractually negoti-
ated benefits. Salaries also may
fall into this category, except
for those considered discretion-
ary. It is best to justify manda-
tory budget expenditures by
citing the applicable federal,
retain the agency’s base budget interest groups, plan strategi- state, and local laws.
and, if possible, to increase it cally, participate fully in the
above the current year’s appro- federal grant process, maintain a Base Expenditures
priations. Developing a logical close working relationship with Essential for the agency’s
strategy provides the means to the local chief executive and continued operation, base
that end. governing board members, and expenditures include utilities,
In November 2002, the involve all levels of the police equipment, supplies and materi-
Police Executive Research department.”10 In addition, als, and other consumables.
Forum (PERF) posted the final aggregate population and Justification in this category

June 2005 / 13
Figure 1: Principal Modalities (Major Activities)
Acuity
Hours Units Total Employee
Per Per Hours Per Officers Percentage
Service Demands Unit Year Modality Required Allocation
Murder 3 41 246 2 0.20%
Robbery 1.5 2,110 6,330 2 5.15%
Burglary 1 1,877 3,754 2 3.05%
Court Appearances 1.5 1,234 9,255 5 7.53%
Theft (shoplifting and all others) 0.58 6,522 7,566 2 6.15%
Arson 1 51 102 2 0.08%
Rape 1.5 88 264 2 0.21%
Fraud 0.75 211 158 1 0.13%
Prostitution 0.33 1,003 662 2 0.54%
Gambling Offense 0.42 468 197 1 0.16%
Vicious Animal 0.33 214 141 2 0.11%
Bomb Threat 1 12 24 2 0.02%
Fire (car, house, building) 1.5 123 369 2 0.30%
DWI 1 44 88 2 0.07%
Emotionally Disturbed Person 1 120 240 2 0.20%
Traffic Control 2 2,190 13,140 3 10.69%
School Crossing 2 1,080 6,480 3 5.27%
MV Pursuit 0.75 81 243 4 0.20%
Arrest (average for all types of arrests) 1.5 15,264 45,792 2 37.25%
Warrant Service 0.75 73 110 2 0.09%
Code Enforcement Violations 0.33 315 104 1 0.08%
Juvenile Condition (curfew, truancy, and all others) 0.75 457 343 1 0.28%
Street Collapse 1 14 28 2 0.02%
Wires Down 1 58 58 1 0.05%
Burglar Alarm (residential, commercial) 0.33 2,555 1,686 2 1.37%
Suicide 1.5 22 66 2 0.05%
Sick/Injured Person 0.75 720 540 1 0.44%
Train Accident 8 1 48 6 0.04%
Kidnapping 3 11 66 2 0.05%
Carjacking 1 77 154 2 0.13%
Drug Sales 0.3 5,041 3,025 2 2.46%
Assault (shooting, stabbing, blunt force) 0.75 1,000 1,500 2 1.22%
Stolen Vehicle Report 0.75 2,645 1,984 1 1.61%
Assist Officer (back up) 0.25 152 76 2 0.06%
Directed Patrol Activities 0.33 5,475 3,614 2 2.94%
Shots Fired 0.33 730 482 2 0.39%
Domestic Violence 1.25 3,255 8,138 2 6.62%
Motor Vehicle Accident (with or without injuries) 1 1,825 3,650 2 2.97%
Disorderly Conduct (fight, loud music, noisy crowds) 0.3 2,555 1,533 2 1.25%
Man with a Gun 0.42 401 674 4 0.55%
Total 60,115 122,927 100.00%

14 / FBI Law Enforcement Bulletin


comes from analyzing previous empirical data, the most reason- for the purpose of more efficient
budgets and projections for able and the easiest to justify. scheduling and deployment of
service delivery. The executive A question often raised in law manpower.”12 In activity-based
must be prepared to explain enforcement circles is, How budgeting, the process begins
increases in operating expendi- many officers do we need or by collecting data on calls for
tures, such as developing a should we have? Typical re- service, generally captured by a
special task force to address a sponses cover a range of computer-aided dispatch system
spike in drug crime. Budget options, including as many as (CAD). If the department does
review members always wel- we can afford, as many as the not have a CAD system, it will
come workload and perfor- mayor and council want, or as have to capture the data manu-
mance-improvement data. many as the people of the city ally. The agency must have at
will pay for. While these state- least 1 complete year of data to
Discretionary Expenditures ments have merit, “the only account for seasonal fluctua-
Discretionary expenditures tions or other anomalies that
enhance an existing level of


might occur. A better data set
service. These costs do not would encompass 2 years of
affect the department’s opera- information to clarify these
tions but contribute to improved Once the agency
same variables and also to
service delivery or a particular has captured the illuminate personnel trends.
program’s efficiency. A valid principal modalities, For example, gaining or losing
example is hiring. By hiring it should format officers may adversely impact
more officers, the agency them for a typical how the organization handles
expects to improve response computer spreadsheet calls for service, including the
time and reduce fear of crime, application. amount of time required to do
but not having the extra officers so. The data set must include


does not adversely impact the the—
organization’s ability to provide • type of call;
basic service. In defending logical and defensible means of
discretionary spending, the determining how many persons • average number of hours
executive must convince the should be assigned to patrol spent handling the call;13
budget review members of the duty is through a careful and • number of calls of that type
necessity or worthiness of the systematic analysis of the duties for the year (or the period
proposal. Once again, workload performed by patrol officers.”11 being examined);
and performance data are at the This is true of any position • number of officers required
top of the list for developing within the police department; to handle the call; and
the rationale. therefore, the first step toward
a logical budget justification • total employee hours per
THE WORKLOAD starts with a workload analysis. modality.14
ANALYSIS Once the agency has cap-
Objectivity denotes a recur- Data Collection tured the principal modalities,
ring theme in budget develop- A workload analysis is “the it should format them for a
ment. The department will find process of collecting and ana- typical computer spreadsheet
an objective budget, based on lyzing data on patrol activities application. After arranging the

June 2005 / 15
Figure 2: Distribution of Time
Activity % Time Daily/Minutes Daily/Hours Split Force Force Allocation
Service Demands 60% 122,927 288 4.8 88 66%
Administrative 10% 20,488 48 0.8 0 0%
Proactive 30% 61,463 144 2.4 45 34%
Total 100% 204,878 480 8 134 100%
Availability 2,086 (40 hours per week, 52.14 weeks per year)
Effective Strength 98.23 FTE Patrol Officers
Relief Factor 1.360 FTE Patrol Officers
Actual Strength 134 FTE Patrol Officers

columns, the department can occurred for the year). The each modality and then sums
easily calculate the total em- department can derive the total the units per year and the total
ployee hours per modality.15 employee hours per modality by employee hours per modality.
Figure 1 represents the simply multiplying the hours The sums of these two catego-
principal modalities and the per unit times the units per year ries provide the foundation for
acuity.16 The hours per unit times the number of officers future calculations and for
show the average amount of required. For example, a call for activity-based budgeting devel-
time spent handling a single call a murder takes two officers 3 opment. Units per year equal
for service of that type (e.g., one hours to handle. Over the course 60,115 while hours per em-
murder will require 3 hours). of 1 year, officers will handle ployee modality total 122,927.
The units per year comprise the 41 murders for a total of 246 The department can add the
total number of calls for service employee hours. The agency percentage allocation as a last
for that type (e.g., 41 murders repeats these calculations for column. This will provide an
excellent visual representation
of which activities consume the
most, as well as the least, of the
budget.
Figure 3: Nonproductive FTE (Relief Factor) In addition, figure 1 shows
Time Off Days Hours that arrests consume 37.25
Vacation 28 224 percent of the time, followed by
Compensatory 5 40 traffic control duty with 10.69
Sick Leave 15 120 percent. The department can
Personal 3 24 order the percentages from
Training 8 64 highest to lowest, or vice versa,
Bereavement 10 80 and contrast them against each
Total Time Off 69 552 other for comparison purposes,
Work Year 260.70 2,086 thereby revealing efficiency. In
Personnel Availability 191.70 1,534
short, the executive sees where
time is spent, thus influencing
Relief Factor 1.360 1.360
processes or technology
changes that reduce effort
requirements for the activity.

16 / FBI Law Enforcement Bulletin


Distribution of Time service. These include adminis- force,17 which differs from the
The next step involves one trative duties (e.g., submitting actual strength. Based on a
of the most important in the reports and attending meetings) work year of 2,086 hours, the
budget development process and proactive functions (e.g., effective strength is 98.23 full-
because what happens with the community policing and di- time equivalent (FTEs) patrol
distribution of time directly rected or self-initiated tasks). officers. Because officers do not
affects the budget. After deter- An agency cannot realistically actually work 2,086 hours per
mining the baseline calcula- formulate a budget around 100 year, one additional calculation
tions, it becomes necessary to percent of the total employee becomes necessary, the relief
distribute the time across three hours per modality without factor. Figure 2 depicts the
primary categories: service factoring in these other respon- distribution of time across the
demands (i.e., calls for service), sibilities. This reveals where three primary management
administrative duties, and prudent management decisions categories and the effective
proactive functions. must be made regarding how patrol force strength.
The first category, service much of the officers’ time the
demands, proves critical be- department is willing to distrib- Force Strength
cause the other areas receive ute across these three catego- and the Relief Factor
their allotted time based on how ries. In other words, the lower Actual patrol force strength
much time this one consumes. the percentage of time allocated is the number of officers re-
The sum of employee hours per for service demands, the more quired to handle the workload.
modality (122,927) represents police officers the organization The relief factor, also known as
100 percent of the workload. will need. nonproductive FTE, accounts
Obviously, police officers must After determining the total for officers’ time off for various
perform other assignments hours, the agency calculates the reasons. Hours, the more basic
besides respond to calls for effective strength of its patrol and preferred work unit for

Figure 4: Supervisory and Investigative Staff


By ratio: 1 Sergeant per 7 Officers Sergeants 19.08 effective strength
1 Lieutenant per 5 Sergeants Lieutenants 3.82 effective strength
1 Detective per 20 Officers Detectives 8.82 effective strength
Sub Total 31.71 FTE Support Staff

Management Staff
Not by ratio: 1 Captain per command Captain 1.000 effective strength
1 Executive Officer Executive Lieutenant 1.000 effective strength
Sub Total 2.000 FTE Command Staff (managers)

Support Staff for Management


By ratio: 4 support staff members per manager Civilian Aides 8.000 effective strength
Sub Total 8.000 FTE Civilian Aides
Total 41.71

June 2005 / 17
these calculations, are more depicted in figure 2, 134 offi- BUDGET
discreet and flexible, rather than cers are required to carry out DEVELOPMENT
days, which the author presents 204,878 hours of patrol opera-
only for illustrative purposes. tions over a period of 1 year. Salary Calculations
The relief factor is derived by a Calculating salaries consti-
two-part subtraction and divi- Management and tutes the first element of activ-
sion equation. For example, Support Staff Positions ity-based budgeting. In many
figure 3 begins with a work year Because law enforcement instances, personnel account for
of 2,086 hours. By subtracting agencies operate with com- more than 90 percent of total
552 hours of allotted time off mand-rank personnel, supervi- budget expenses. The goal at
(i.e., nonproductive FTE), the sors, and support staff, they this point is to establish the rate
difference of 1,534 denotes must account for these employ- per employee hour. Establishing
personnel availability. Dividing ees to develop an accurate this figure creates a baseline
the work year (2,086) by per- budget. Depending upon con- from which to work and also is
sonnel availability (1,534) tractual stipulations or other necessary for monitoring pur-
results in the quotient of 1.36. managerial prerogatives, a poses. If the department needs
This means that it takes 1.36 department may or may not to reduce expenses, it may not
police officers for every posi- justify these positions by ratio. be able to do so from salaries
tion to provide an acceptable If not by ratio, then the agency because these usually are
level of service 365 days per only needs a fixed number. contractual. Knowing how
year, 24 hours per day. Figure 4 outlines the staff much it costs to perform the
The final step, actual patrol necessary to complete a required work can benefit
strength, is determined by department’s workforce, and managers and supervisors as
multiplying the effective figure 5 shows the total person- they monitor individual and
strength by the relief factor. nel complement. Now that collective performance. The
The effective strength is 98.23; the agency has projected its equation of salary times benefits
the actual strength is 134 (134 = workload and staffing needs, times FTE or total employee
98.23 × 1.36). Thus, according it can use the results to develop hours per modality can calculate
to the distribution of time as an activity-based budget. the rate per employee hour.

Figure 5: FTE Subtotal


Position Complement Work Hours Relief?
Captain 1 9-5 MF No Actual Strength
Executive Lieutenant 1 9-5 MF No Actual Strength
Lieutenant 5 24/7 Yes Actual Strength
Sergeant 26 24/7 Yes Actual Strength
Detective 9 9-5 MF No Actual Strength
Patrol Officer 134 24/7 Yes Actual Strength
Civilian Aides 8 9-5 MF No Actual Strength
Total FTEs 184 Actual Strength

18 / FBI Law Enforcement Bulletin


Figure 6: Salary Calculations (includes relief factor)
Benefits Salary
FTE Salary at 20% Cost Title
134 $71,214 $14,243 $11,451,211 Patrol Officers
1 $108,109 $21,622 $129,731 Captain
1 $92,016 $18,403 $110,419 Executive Lieutenant
26 $84,789 $16,958 $2,645,417 Lieutenant
5 $77,215 $15,443 $463,290 Sergeant
9 $72,214 $14,443 $779,911 Detective
8 $27,125 $5,425 $260,400 Support staff
184 $15,840,379 Total Salary Cost
divided by 122,927 total employee hours per modality
Rate per employee hour $128.86

Figure 6 outlines the FTE salary total cost ($128,480) by the equation of cost equals quantity
calculations, including the number of units per year times unit cost divided by
benefits package, and shows (60,115), the department can useful life in years shows the
the rate per employee hour as derive the unit cost for materials total cost for equipment as
$128.86. as $2.14. $513,290. The department can
The larger category of derive the unit cost the same
Materials and equipment consists of various way it did for materials, which
Equipment Costs items necessary to adequately reveals a unit cost for equip-
In lean fiscal times, agencies carry out the functions of the ment of $8.54.
generally reduce training and patrol officer. Equipment
equipment budgets. Figure 7 typically has a useful life of Present Level
depicts the total and unit costs more than 3 years; however, of Service
for materials and equipment. this is not a rule. The agency The final step, calculating
Materials usually consist of can calculate equipment expen- the costs for the present level of
consumable supplies, such as ditures by spreading the cost of service, involves reconciling all
pens, paper, flares, and crime individual items across their of the previous calculations to
scene tape. A simple calculation useful life spans. Incurring the form the activity-based budget.
based on a fixed amount per full expense of the equipment First, the agency replicates
employee can determine the will not come until the depart- figure 8, which holds the princi-
unit cost for materials. In the ment must replace the items. pal modalities. These serve as
example, materials are appropri- Therefore, the agency can the foundation upon which the
ated at $700 per employee or predicate the cost upon the remainder of the budget will
$128,480 total. By dividing the equipment’s useful life. The rest. The department must

June 2005 / 19
conduct a few additional calcu- calculate the salary per hour to purchase the items. This
lations to arrive at the total cost. For example, the total method [is] used to justify the
cost. These include salary per number of officers required to need for personnel or equip-
hour and per unit costs of handle a murder is two; multi- ment....”18 This reveals the most
salary, material, and equipment, plying this by the rate per salient feature of activity-based
along with the unit and total employee hour results in a budgeting because identifying
costs. salary per hour of $257.72. the individual costs is what this
budget plan seeks to accom-
Salary Per Hour Per Unit Costs plish. To determine the salary
By multiplying the rate “Unit costs compare the per unit cost, the department
per employee hour ($128.86) volume of work anticipated to multiplies the hours per unit
by the total number of officers the items needed to complete (3) by the salary per hour
required, the department can the work and the funds required ($257.72), obtaining the salary

Figure 7: Materials and Equipment


Materials Equipment

Quantity Unit Cost Useful Life/yrs Cost


Paper, Pencils, Reports, Forms,
Crime Scene Tape, Flares and all
other Consumable Supplies (@ $700
per employee) $128,480 Computers 15 $1,700 5 $5,100
Total $128,480 Shotguns 25 $700 15 $1,167
divided by units per year 60,115 Typewriters 15 $300 5 $900
Unit Cost $2.14 Marked Police Cars 36 $35,000 3 $420,000
Prisoner Van 1 $40,000 6 $6,667
First Aid Kit and Replacements 80 $140 3 $3,733
Nontraditional Vehicles 5 $19,000 7 $13,571
Night Vision Equipment 5 $7,500 7 $5,357
Walk-through Metal Detector 1 $5,500 10 $550
Gas Masks 200 $320 7 $9,143
Mesh Traffic Vests 50 $30 5 $300
Tripod Scene Lighting 5 $1,000 7 $714
Megaphones 10 $90 7 $129
Prisoner Legirons 25 $43 10 $108
Snow Blower 1 $2,600 5 $520
Laser Printers 10 $1,400 5 $2,800
Unmarked Police Cars 6 $28,000 5 $33,600
Traffic Cones 100 $35 10 $350
Suites of Furniture 5 $7,500 10 $3,750
Photocopier 1 $25,000 6 $4,167
Fax 4 $499 3 $665
Total $513,290
divided by units per year 60,115
= equipment per unit $8.54

20 / FBI Law Enforcement Bulletin


Figure 8: The Activity-Based Budget: Present Level of Service
Units Hours Salary Salary Material Equipment
Per Per Officers Total Per Per Per Per Unit Total Percentage
Year unit Required Hours hour unit unit unit Cost Cost Allocated
Murder 41 3 2 246.00 $257.72 $773.16 $2.14 $8.54 $783.84 $32,137.31 0.19%
Robbery 2,110 1.5 2 6,330.00 $257.72 $386.58 $2.14 $8.54 $397.26 $838,210.65 5.09%
Burglary 1,877 1 2 3,754.00 $257.72 $257.72 $2.14 $8.54 $268.40 $503,779.40 3.06%
Court Appearances 1,234 1.5 5 9,255.00 $644.30 $966.45 $2.14 $8.54 $977.13 $1,205,774.74 7.32%
Theft (all types) 6,522 0.58 2 7,565.52 $257.72 $149.48 $2.14 $8.54 $160.15 $1,044,521.19 6.34%
Arson 51 1 2 102.00 $257.72 $257.72 $2.14 $8.54 $268.40 $13,688.20 0.08%
Rape 88 1.5 2 264.00 $257.72 $386.58 $2.14 $8.54 $397.26 $34,958.55 0.21%
Fraud 211 0.75 1 158.25 $128.86 $96.65 $2.14 $8.54 $107.32 $22,644.70 0.14%
Prostitution 1,003 0.33 2 661.98 $257.72 $85.05 $2.14 $8.54 $95.72 $96,010.59 0.58%
Gambling Offense 468 0.42 1 196.56 $128.86 $54.12 $2.14 $8.54 $64.80 $30,324.99 0.18%
Vicious Animal 214 0.33 2 141.24 $257.72 $85.05 $2.14 $8.54 $95.72 $20,484.81 0.12%
Bomb Threat 12 1 2 24.00 $257.72 $257.72 $2.14 $8.54 $268.40 $3,220.75 0.02%
Fire (all types) 123 1.5 2 369.00 $257.72 $386.58 $2.14 $8.54 $397.26 $48,862.52 0.30%
DWI 44 1 2 88.00 $257.72 $257.72 $2.14 $8.54 $268.40 $11,809.43 0.07%
Emotionally Disturbed
Person 120 1 2 240.00 $257.72 $257.72 $2.14 $8.54 $268.40 $32,207.53 0.20%
Traffic Control 2,190 2 3 13,140.00 $386.58 $773.16 $2.14 $8.54 $783.84 $1,716,602.49 10.41%
School Crossing 1,080 2 3 6,480.00 $386.58 $773.16 $2.14 $8.54 $783.84 $846,543.69 5.14%
MV Pursuit 81 0.75 4 243.00 $515.44 $386.58 $2.14 $8.54 $397.26 $32,177.75 0.20%
Arrest (all types) 15,264 1.5 2 45,792.00 $257.72 $386.58 $2.14 $8.54 $397.26 $6,063,719.11 36.79%
Warrant Service 73 0.75 2 109.50 $257.72 $193.29 $2.14 $8.54 $203.97 $14,889.52 0.09%
Code Enforcement 315 0.33 1 103.95 $128.86 $42.52 $2.14 $8.54 $53.20 $16,757.86 0.10%
Juvenile Condition 457 0.75 1 342.75 $128.86 $96.65 $2.14 $8.54 $107.32 $49,045.62 0.30%
Street Collapse 14 1 2 28.00 $257.72 $257.72 $2.14 $8.54 $268.40 $3,757.54 0.02%
Wires Down 58 1 1 58.00 $128.86 $128.86 $2.14 $8.54 $139.54 $8,093.08 0.05%
Burglar Alarm (all
types) 2,555 0.33 2 1,686.30 $257.72 $85.05 $2.14 $8.54 $95.72 $244,573.34 1.48%
Suicide 22 1.5 2 66.00 $257.72 $386.58 $2.14 $8.54 $397.26 $8,739.64 0.05%
Sick/Injured Person 720 0.75 1 540.00 $128.86 $96.65 $2.14 $8.54 $107.32 $77,271.00 0.47%
Train accident 1 8 6 48.00 $773.16 $6,185.29 $2.14 $8.54 $6,195.96 $6,195.96 0.04%
Kidnapping 11 3 2 66.00 $257.72 $773.16 $2.14 $8.54 $783.84 $8,622.20 0.05%
Carjacking 77 1 2 154.00 $257.72 $257.72 $2.14 $8.54 $268.40 $20,666.50 0.13%
Drug Sales 5,041 0.3 2 3,024.60 $257.72 $77.32 $2.14 $8.54 $87.99 $443,566.72 2.69%
Assault (all types) 1,000 0.75 2 1,500.00 $257.72 $193.29 $2.14 $8.54 $203.97 $203,965.97 1.24%
Stolen Vehicle 2,645 0.75 1 1,983.75 $128.86 $96.65 $2.14 $8.54 $107.32 $283,863.62 1.72%
Assist Officer 152 0.25 2 76.00 $257.72 $64.43 $2.14 $8.54 $75.11 $11,416.08 0.07%
Directed Patrol 5,475 0.33 2 3,613.50 $257.72 $85.05 $2.14 $8.54 $95.72 $524,085.74 3.18%
Shots Fired 730 0.33 2 481.80 $257.72 $85.05 $2.14 $8.54 $95.72 $69,878.10 0.42%
Domestic Violence 3,255 1.25 2 8,137.50 $257.72 $322.15 $2.14 $8.54 $332.83 $1,083,349.10 6.57%
Motor Vehicle
Accident 1,825 1 2 3,650.00 $257.72 $257.72 $2.14 $8.54 $268.40 $489,822.80 2.97%
Disorderly Conduct 2,555 0.3 2 1,533.00 $257.72 $77.32 $2.14 $8.54 $87.99 $224,819.08 1.36%
Person Armed with a
Weapon 401 0.42 4 673.68 $515.44 $216.49 $2.14 $8.54 $227.16 $91,091.48 0.55%
Total 60,115 122,927 $16,482,149 100.00%

per unit cost for the modality equipment per unit ($8.54) by multiplying the units per year
of murder of $773.16. costs. The department’s unit for each modality (41) by the
cost for murder totals $783.84. unit cost ($783.84). The total
Unit Cost cost for the murder modality is
The unit cost is the sum Total Costs $32,173.31.
of salary per unit ($773.16), Total costs, the final calcu- Figure 8 demonstrates the
materials per unit ($2.14), and lation in the budget, are derived completed activity-based budget

June 2005 / 21
plan outlining the entire cost for summing the categories (sala- posture. Supervisors can use it
salaries, materials, and equip- ries, materials, and equipment) to make adjustments in pro-
ment. It becomes readily appar- in the budget summary, the total cesses or shift personnel. Ad-
ent that the percentage of the must equal the activity-based ministrators can employ it to
budget allocated per modality budget total. A simple pie chart create partnership programs
in figure 8 approximates the of the finished budget gives a with the police department. In
percentage of time allocated valuable perspective of how the this sense, it is useful to see the
per modality in figure 1. department will distribute its proportion of the activity-based
funds. budget allocated to each partner.
Budget Summary The department also can use it
Once the department has CONCLUSION to justify hiring and promoting
prepared the activity-based Activity-based budgeting, personnel. By using accepted
budget, it will find it useful to an objective way to link industry standards of span of
create a small budget summary workload to costs, is easy to control, an executive can argue
by category, which would design. Each division of the in favor of hiring and promoting
include salaries, materials, and police department can create based upon the volume of work.
equipment. The budget sum- one to examine its operational Beyond its internal uses,
mary will help to reconcile the efficiency. Connecting all of the activity-based budgeting has
individual pieces of the budget. individual budgets provides the other merits. Many grant pro-
The total cost presented in organization with a comprehen- grams require one so grantors
figure 8 is $16,482,149. When sive picture of its operating can see where their money is
being spent and how efficiently
grantees can administer the
Budget Summary programs. Activity-based
Total from Figure 6. Salary Calculations Salaries $15,840,379 96.11% budgeting easily can be turned
Total from Figure 7 Materials Materials $128,480 0.78% into a performance-based
and Equipment Equipment $513,290 3.11%
Total $16,482,149 100.00%
budget by attaching perfor-
mance standards. It also can be
used together with bench-
marking to identify best prac-
tices.19 The basic steps in
corporate benchmarking include
deciding what process to bench-
mark, studying the process in
their organization, identifying
benchmarking partners, analyz-
ing the processes of bench-
marking partners to identify
differences that account for
superior performance, adapting
and implementing best prac-
tices, and monitoring and

22 / FBI Law Enforcement Bulletin


revising.20 In the police depart- Endnotes 11
C.D. Hale, Police Patrol: Operations
S.L. Riley and Peter W. Colby, Prac- and Management (New York, NY: John
ment example, effecting arrests
1

tical Government Budgeting: A Workbook Wiley and Sons, 1981).


consumes nearly 37 percent of for Public Managers (Albany, NY: State
12
Ibid., 163.
the activity. Benchmarking University of New York Press, 1991).
13
Any portion of an hour is calculated
them could determine if a more 2
A zero-based budget begins by as such. For example, 20 minutes is
efficient way exists to process preparing an operating plan or budget captured as .33 hours and 47 minutes as
that starts with no authorized funds. .783 hours.
arrests, including new technol- 14
In budgeting, modalities are the
For this type of budget, an organization
ogy that reduces the effort. must justify each activity every time it attributes (i.e., major activities) being
“Activity-based budgeting prepares a new budget. examined. In this case, they are the types
(ABB) holds [some] promise as 3
D. Maddox, Budgeting for Not-for- of calls for service.
a...solution to the faults and Profit Organizations (New York, NY:
15
In budgeting, acuity is the distinct
John Wiley and Sons, 1999). detail, the calculations that comprise the
frustrations of traditional bud- budget.
geting methods: 16
Due to rounding, some numbers may


1. Traditional budgets don’t not add to totals shown in the figures or
identify waste. ABB ex- referred to in the text of this article.
17
The effective strength of the patrol
poses nonvalue costs. In lean fiscal times, force is how many officers are on duty at
2. Traditional budgets focus agencies generally a given time. Supra note 11, 167.
on workers. ABB focuses
18
Supra note 1, 54.
reduce training and 19
In public sector application, the term
on workload. equipment budgets. benchmarking “features the identification
3. Traditional budgets focus of a point of reference for comparison or
on division cost. ABB also measurement purposes. With a benchmark,


public officials can measure the perfor-
focuses on process cost. mance gap between where they are and
4. Traditional budgets focus where they want to be and can track their
on fixed versus variable 4
Ibid., 228. progress in closing the gap.” D.N.
5
Ibid., 20. Ammons, “A Proper Mentality for
costs. ABB also focuses 6
I.S. Rubin, The Politics of Public Benchmarking” in Gerald J. Miller,
on used versus unused Budgeting: Getting and Spending, W. Bartley Hildreth, and Jack Rabin,
capacity. Borrowing and Balancing, 4th ed. (New Performance-Based Budgeting (Boulder,
York, NY: Chatham House, 2000). CO: Westview Press, 2001), 419-429.
5. Traditional budgets measure 7
Both definitions retrieved on August 20
Ibid., 423.
‘effect.’ ABB measures root 31, 2004, from http://m-w.com. 21
T. Pryor, Integrated Cost Manage-
‘cause.’”21 8
Police Executive Research Forum, ment Systems, Inc., What Happened to
It also provides an alterna- Police Department Budgeting: A Guide ABB? (2004); retrieved on December 23,
for Law Enforcement Chief Executives 2004, from http://www.icms.net/news-
tive to traditional government (Washington, DC, 2002). 18.htm.
budgets; the line item may be 9
J.R. Greene, Tim S. Bynum, and Gary 22
P.F. Drucker, Managing the
required by law, but nothing W. Cordner, “Planning and the Play of Nonprofit Organization: Principles and
prevents an organization from Power: Resource Acquisition Among Practices (New York, NY: Harper
adopting activity-based budget- Criminal Justice Agencies,” Journal of Perennial, 1990).
Criminal Justice 14 (1986): 529-544.
ing to solve internal problems. 10
Supra note 8, 2; and Aaron The author thanks Dr. Gerald Miller,
After all, “what is the bottom Wildavsky, The Politics of the Budgetary Rutgers Graduate School of Public
line when there is no ‘bottom Process, 3rd ed. (Boston, MA: Little Administration, for inspiring this article.
line’? Performance!”22 Brown and Company, 1979), 63-126.

June 2005 / 23
ViCAP Alert

Unidentified Homicide Victim


Tattoo from right
back shoulder of
victim.

Tattoo rendering
from left forearm
of victim.

O n June 18, 2001, a man collecting cans


along Old Stage Road, near the intersec-
tion of Pecan Road in Jackson County, Missis-
the victim’s head, upper torso, waist, and feet. The
bed linens were soaked with blood that had dried.
There was a fresh, close gunshot wound to the right
sippi, discovered a dead body wrapped in black temple, which contributed to the victim’s cause of
plastic sheeting on the shoulder of the road. The death. During the autopsy, authorities obtained the
local law enforcement authority, Jackson County victim’s known fingerprints. The FBI and U.S.
Sheriff’s Office, was contacted and responded to Department of Homeland Security examined the
the crime scene. The area was processed and the fingerprints with negative results.
body was recovered and transported to the hospital
morgue for examination. The Victim
The victim’s body is that of a stocky white
The Autopsy male, believed to be of Hispanic origin, around 28
An autopsy revealed that in addition to being to 36 years old, approximately 5 feet 5-1/2 inches
wrapped in black plastic, the body was bundled in tall, weighing between 225 and 250 pounds, with
bed linens and carpet. Nylon rope was tied around close-cut, dark brown hair with a small amount of

24 / FBI Law Enforcement Bulletin


gray. A number of tattoos and scars were recorded. Alert to Law Enforcement
The victim has a pierce scar on the left earlobe, an Law enforcement agencies should bring this
indent scar in the center of his forehead, a “C” information to the attention of all crime analysis
shaped scar in his left eyebrow, a scar on the left units, officers investigating crimes against per-
side of his nose, and a possible gunshot scar on his sons, and narcotics units. Also, the offender’s fin-
left wrist. A tattoo of the name “John” is written in gerprint profile should be provided to local and
fine script in the clavicular region of his right upper state laboratories for comparison purposes. Any
chest; a black outlined tattoo, 9 by 4 inches, of a agency requiring additional information or a copy
peacock is on his right upper back; and an old of the fingerprint card should contact Detective
English script letter “E” or “F” is on his left fore- Sergeant Ken McClenic of the Jackson County
arm. Evidence and investigative efforts suggest Sheriff’s Office, Pascagoula, Mississippi, at 228-
that the victim may have been involved with 769-3063 or at ken_mcclenic@co.jackson.ms.us;
narcotics distribution. The victim’s NCIC number or Crime Analyst Glen W. Wildey, Jr., of the FBI’s
is U540002695 and his fingerprint code is Violent Criminal Apprehension Program (ViCAP)
17131116141713101713. Unit at 703-632-4166 or gwildley@leo.gov.

Unusual Weapon

FM Radio
This unusual weapon is a
functional FM radio with ear
phones that is worn on a belt but
also conceals a gun. Law en-
forcement officers should be
aware of the possible threat of
this object.

Submitted by John F. Brannigan, a retired


law enforcement officer and weapons
concealment instructor.

June 2005 / 25
Legal Digest

The Supreme Court Brings


an End to the “End Run”
Around Miranda
By LUCY ANN HOOVER, J.D., LL.M.

© Comstock Images

S ince Miranda v. Ari-


zona,1 the U.S. Supreme
Court has remained
steadfast in its position that
four specific warnings: the right
to remain silent; that any state-
ments may be used against
them; the right to have an
that condition as nonnegotiable
when it handed down its deci-
sion in Missouri v. Seibert.3
This article addresses the
for a defendant to waive the attorney present during ques- validity of a waiver provided by
privilege against self-incrimina- tioning; and that an attorney suspects who have just been
tion, the government must will be appointed if he can not subjected to a two-tiered inter-
establish that the defendant afford one.2 Notwithstanding rogation tactic used in Seibert
did so knowingly, intelligently, these warnings, the Court still wherein an unwarned interroga-
and voluntarily. Miranda held could find the statement inad- tion precedes the Miranda
that any statement arising from missible if the Court concludes warnings and waiver and a
custodial interrogation of a that the defendant did not confession is obtained. The
suspect is presumed to be waive those rights knowingly, article also discusses the factors
involuntary and, therefore, intelligently, and voluntarily. that a court considers when
inadmissible unless the police In June 2004, the U.S. Supreme determining whether suspects,
first provide the suspect with Court, once again, declared subjected to this two-tiered

26 / FBI Law Enforcement Bulletin


approach, waived their Miranda
rights knowingly, intelligently,
and voluntarily. Finally, the
impact the U.S. Supreme
Court’s decision will have on
“ Department
interrogation practices
should continue to
reflect the fundamental
the two-tiered interrogation
tactic, sometimes referred to
principles announced
as the “ask first, warn later” by the U.S. Supreme
tactic, is addressed. Court in Miranda and
its progeny.
Missouri v. Seibert:
The Two-Tiered
Interrogation Strategy
In Missouri v. Seibert,
Patrice Seibert, the defendant,
” Special Agent Hoover is a legal
instructor at the FBI Academy.

was a mother of five sons, one


of whom, Jonathan, age 12, was Donald Rector seemed like the officer had been taught. As a
stricken with cerebral palsy. perfect way to destroy any result, he was just “follow[ing]
When Jonathan died in his evidence of their neglect of instructions.”6
sleep, Seibert was fearful that Jonathan.4 The officer testified that
she would be charged with Seibert was arrested later after Seibert was brought to the
negligence once the investigat- for her role in this crime and police station, he questioned her
ing authorities discovered transported to the police station for approximately 30 to 40
Jonathan’s body covered in bed for questioning. Once at the minutes prior to advising her of
sores. To avoid criminal culpa- police station, the arresting her rights under Miranda. Thus,
bility, she conspired with her officer began to question the questioning was “outside of
two eldest sons and two of their Seibert without advising her Miranda.” During this time,
friends to set fire to their mobile of her Miranda rights and Seibert admitted that “she knew
home, leaving Jonathan’s body receiving a waiver. The officer that Donald [Rector] was meant
inside. However, she also was who arrested Seibert and inter- to die in the fire.”7 Seibert was
concerned with how she would viewed her testified that he then afforded a 20-minute
explain leaving young Jonathan purposefully refrained from coffee and cigarette break.8 The
alone and unattended. advising Seibert of her Miranda second round of interrogation
The answer was to leave rights even though he knew he was conducted by the same
Donald Rector, a teenager who was engaged in a custodial police officer and in the same
was mentally ill and living with interrogation. The officer room. However, this time, the
the Seibert family, in the mobile “testified that he made a con- police officer “gave Seibert
home with Jonathan. The medi- scious decision to withhold the Miranda warnings and
cation that Rector was taking Miranda warnings, question obtained a signed waiver of
usually made him sleepy; there- first, then give the warnings, rights from her.”9
fore, the Seibert family counted and then repeat the question The second round of ques-
on Rector being sound asleep in until he got the answer previ- tioning began by referring to the
his bed when they set the fire. ously given.”5 This was an first round of questioning and
To them, the murder of young interrogation technique that the those statements obtained

June 2005 / 27
“outside of Miranda.” Seibert Supreme Court disagreed, noticed a growing trend of such
confirmed that during the initial concluding that this tactic practices.”16
round of questioning, they had violated Miranda, and the Despite what scholars
been discussing the events that government appealed to the deemed a growing trend, the
occurred on the day of the fire. U.S. Supreme Court.12 Supreme Court appreciated the
Following a few more questions The U.S. Supreme Court, notion that “it is not the case, of
that were rhetorical confirma- agreeing with the Missouri course, that law enforcement
tions of admissions made in the Supreme Court, expressed educators en masse are urging
prior unwarned confession, the concern about an interrogation that Miranda be honored only in
police officer asked, “[Pa]trice, strategy that endorses an inten- breach.”17 Concluding, in fact,
didn’t you tell me that [Donald tional deprivation of Miranda that “[m]ost police manuals do
Rector] was supposed to die in not advocate the question-first
his sleep?” tactic, because they understand


Seibert answered, “If that that Oregon v. Elstad involved
would happen, ‘cause he was an officer’s good faith failure to
on that new medicine, you The U.S. Supreme warn.”18
know….” Court...expressed
Finally, the police officer concern about a Elstad and Its
asked, “The Prozac? And it strategy that endorses Evolution into an
makes him sleepy. So he was Interrogation Tactic
an intentional
supposed to die in his sleep?” deprivation of Miranda The U.S. Supreme Court
Seibert simply said, “Yes.”10 rights.... held that Seibert’s waiver
Seibert was convicted of was not effective because of the


second-degree murder. The trial unwarned interrogation just
court suppressed Seibert’s first prior to providing her the
statement because she had not Miranda rights. The Supreme
been advised of the Miranda rights, recognizing that Court’s ruling in Seibert re-
warnings prior to her custodial “[a]lthough we have no statis- jected an interpretation of its
interrogation, but allowed her tics on the frequency of this holding in Oregon v.Elstad
second statement to be used practice, it is not confined which seemed to promote the
against her, relying on the U.S. to...Missouri.”13 The Supreme concept that the “mere recita-
Supreme Court’s ruling in Court found that “the strategy tion of the littany suffices to
Oregon v. Elstad.11 The lower of withholding Miranda warn- satisfy Miranda in every con-
court held that this second ings until after interrogating and ceivable circumstance.”19 The
round of statements was admis- drawing out a confession was U.S. Supreme Court’s holding
sible because she was advised promoted not only by his own in Elstad gave rise to what
of her rights, and she provided a department but by a national evolved into an approach to
signed waiver. The Court police training organiza- conducting interrogations that
reasoned that the problem with tion....”14 Moreover, the justices became somewhat popular and
her unwarned first statement noted that “[t]his training is was used in Seibert v. Missouri;
had been rehabilitated by reflected in the reported cases that is, holding off on advising
advisement of the Miranda involving deliberate question- suspects of their Miranda rights
rights prior to her second ing after invocation of Miranda until after obtaining an incrimi-
statement. The Missouri rights”15 and that “scholars have nating statement or confession.

28 / FBI Law Enforcement Bulletin


In Seibert, the U.S. Supreme “told Mr. Elstad that [he] felt the station house confession
Court took the opportunity to [Elstad] was involved in that.” derived from the officer’s
distinguish between the interro- Mr. Elstad then “looked at [the exchange with the suspect,
gation situation in Elstad and officer] and stated, ‘Yes, I was should be suppressed because
what occurred in Seibert. there.’”21 Miranda warnings had not been
Concerned with an approach The suspect then was provided during the initial
that implicitly encouraged transported to the police station, exchange at the house. The
Miranda violations, the U.S. waived his Miranda rights, and lower court held that once the
Supreme Court ruled that the provided a full confession. initial Miranda violation oc-
practice of conducting two- Counsel for the defendant, in a curred, all that followed was
tiered interrogations, sometimes motion to suppress, argued that tainted, including the station
referred to as “beachheading,”20 the confession in response to house confession and, therefore,
violates the purpose of custodial interrogation at the inadmissible. The lower court
Miranda. police station was “tainted” by reasoned that “[r]egardless of
In Elstad, law enforcement the unwarned statement made the absence of actual compul-
officers went to the home of a in the suspect’s living room. sion, the coercive impact of the
burglary suspect to take him unconstitutionally obtained
into custody. The suspect’s statement remains because in a
mother answered the door and defendant’s mind it has sealed
led the officers to the suspect, his fate.”23
who was in his bedroom. Prior The Supreme Court agreed
to the arrest, one of the law with the lower court’s recogni-
enforcement officers waited for tion that “[i]t is this [coercive]
the suspect to get dressed and impact that must be dissipated
accompanied him to the living in order to make a subsequent
room while the other officer confession admissible.”24 The
asked the suspect’s mother to Court identified two of the most
step into the kitchen where he important factors to consider in
advised her that they had a © PhotoDisc determining whether that
warrant for her son’s arrest on coercive impact has been
a burglary charge. The officer Despite compliance with dissipated as: the “lapse of time
who remained in the living Miranda at the station house, and change of place from the
room with the suspect testified the defense argued that once the original surroundings.”25 The
that he “sat down with Mr. “cat [was] out of the bag,”22 any Court stated that it has “never
Elstad and asked him if he was efforts of law enforcement to gone so far as to hold that
aware why [they] were there to rehabilitate or save an already making a confession under
talk to him. He stated that he tainted admission were point- circumstances which preclude
had no idea....” The officer then less. The defense argued that its use perpetually disables the
“asked him if he knew a person the law enforcement officer’s confessor from making a usable
by the name of Gross, and he comment that he “felt” the one after those conditions have
said yes, he did, and also added young man was involved in the been removed.”26 Moreover, the
that he heard that there was a burglary was an “elicitation” Elstad Court continued, “[t]here
robbery at the Gross house.” It akin to interrogation. Accord- is a vast difference between the
was at this point that the officer ingly, the statements, including direct consequences flowing

June 2005 / 29
from coercion of a confession Court recognized that a “simple Miranda warnings and obtain a
by physical violence or the failure to administer the waiver. The police officer con-
deliberate means calculated to [Miranda] warnings” with no ducting the interrogation in
break the suspect’s will and the indication of behavior on the Seibert admitted that he made a
uncertain consequences of part of the law enforcement “conscious decision to withhold
disclosure of a ‘guilty secret’ officer that could be interpreted Miranda warnings.” The stated
freely given in response to an as coercion, compulsion, or purpose of this practice was to
unwarned but noncoercive an effort to “undermine the afford the police officer the time
question, as in this case.”27 and opportunity to establish
Based upon this reasoning, rapport with suspects in an
the U.S. Supreme Court re- effort to get them to open up
jected with the lower court’s and make admissions or full
reasoning in Elstad and found confessions. According to
that the purpose of the pause in training, once the suspect has
the burglary suspect’s living “let the cat out of the bag,” the
room, where he first acknowl- interrogating officer should
edged being at the scene of the provide the Miranda warnings
crime, was not to interrogate and ask the suspect for a
him but, rather, to inform his waiver. The government argued
mother of the reason for the © Comstock Images
that once Miranda rights are
arrest. The Court characterized provided and waived, state-
the police officer’s failure to suspect’s ability to exercise his ments should be admitted in
warn as an “oversight” that free will” should not keep out the subsequent prosecution.
“may have been the result of a statement that otherwise is The U.S. Supreme Court
confusion as to whether the voluntary.29 “Suppressing post- rejected that line of reasoning in
brief exchange qualified as warning statements under such Seibert because its primary
‘custodial interrogation’ circumstances would serve concern was one of abuse.
or…may simply have ‘neither the general goal of Moreover, because the object of
reflected…reluctance to initiate deterring improper police such a practice was to “question
an alarming police procedure misconduct nor the Fifth first, Mirandize later,” the Court
before [an officer] with [the Amendment goal of assuring reasoned that it fundamentally
young man’s] mother.”28 trustworthy evidence.’”30 “render[ed] Miranda warnings
The Supreme Court also ineffective by waiting for a
found that there was no indica- Unintentional Versus particularly opportune time to
tion of coercion by the police Intentional Violations give them,” specifically, “after
officers at the time the suspect Seibert presented the U.S. the suspect has already con-
admitted his presence at the Supreme Court with the oppor- fessed.”31
scene of the crime. Further, that tunity to distinguish between The Court’s opposition to
the issue of coercion goes to the the “simple failure to warn” and a practice that renders the
heart of Miranda. The constitu- the calculated practice of a two- Miranda warnings ineffective is
tional protection ensures, that tiered interrogation technique a reaffirmation of the Miranda
“no person shall be compelled consciously chosen by an ruling in 1966 in which it
in any criminal case to be a officer to disregard the govern- held that “incommunicado
witness against himself.” The ment’s obligation to provide interrogation of individuals in a

30 / FBI Law Enforcement Bulletin


police-dominated atmosphere, The U.S. Supreme Court intended to deprive Seibert
resulting in self-incriminating held that the recitation of the of the opportunity knowingly
statements without full warn- Miranda warnings “midstream” and intelligently to waive
ings of constitutional rights did not effectively provide the her Miranda rights.”37 Further,
violates the Constitution.”32 procedural safeguards it envi- the Court went on to say that
Once advised, the suspect may sioned in Miranda. In doing so, “[t]o allow the police to
waive those rights afforded by the Court questioned the valid- achieve an ‘end run’ around
Miranda, provided that the ity of Seibert’s waiver, ques- Miranda…would encourage
waiver is made voluntarily, tioning whether it was made Miranda violations and di-
knowingly, and intelligently. voluntarily, knowingly, and minish Miranda’s role in pro-
For law enforcement offi- intelligently when Miranda was tecting the privilege against
cers, the threshold problem that presented to her after she self-incrimination.”38
the Seibert case presents, aside already had “let the cat out of
from eliminating an interroga- Post-Seibert Developments


tion tactic endorsed and prac- In U.S. v. Stewart,39 the
ticed by many, boils down to Third Circuit Court of Appeals
a basic question, How can a ...once the initial remanded a case of a bank
person voluntarily, knowingly Miranda violation robber and directed that the
and intelligently waive a right to occurred, all that admissibility of the confession
remain silent when the officer, be evaluated in light of the
followed was tainted, Seibert ruling. The circuit court
through deliberate tactics, has including the station
already managed to get the “cat of appeals expressed concern
out of the bag”?
house confession that the confession may be the
To give credence to and, therefore, product of a two-tiered interro-
Seibert’s second confession, the inadmissible. gation. As such, the case was
Court would have had to reject remanded to obtain sufficient


their long-standing holding information to rule on the
concern that anyone subjected validity of the defendant’s
to custodial interrogation is the bag.” After all, could she waiver. Additional information
guaranteed “a full and effective truly appreciate the fact that the was needed regarding the
warning of his rights.”33 A protections afforded to her by temporal and spatial circum-
practice of condoning the “mere Miranda, albeit midstream, stances surrounding the first and
recitation of the [Miranda] provided her with the opportu- second interrogations before
litany”34 is arguably a full nity to invoke either or both of ruling on the admissibility of
warning, but hardly effective, as her rights to silence and to the confessions. The circuit
there exists the genuine fear that counsel? court of appeals stated that this
“rights declared in words may In distinguishing Elstad analysis would involve consid-
be lost in reality.”35 This is from Seibert with regard to eration of “a series of relevant
especially true in a sequential those questions, the U.S. Su- facts that bear on whether
confession case, like Seibert, in preme Court agreed with the Miranda warnings delivered
which the “earlier and later Missouri Supreme Court’s midstream could be effective
statements are realistically seen opinion that the interrogating enough to accomplish their
as parts of a single, unwarned officer’s “intentional omission objectives: the completeness
sequence of questioning.”36 of a Miranda warning was and detail of the questions and

June 2005 / 31
answers in the first round of interrogation tactics, viewing 10
Id.
11
interrogation, the overlapping them as an attempt to “achieve No. 23729, 2002 WL 114804 (1/3/
2002) (not released for publication), citing
content of the two statements, an ‘end run’ around Miranda.” Oregon v. Elstad, 470 U.S. 298 (1985).
the timing and setting of the However, effective interview- 12
State v. Seibert, 93 S.W.3d 700
first and the second, the conti- ers often will want to establish (2002).
13
nuity of police personnel, a rapport with the interviewee Seibert, at 2608. The Supreme Court
and the degree to which the before launching into the heart noted that the Police Law Institute
instructed officers on the two-tiered
interrogator’s questions treated of the interview. Such rapport interrogation approach. Additionally, the
the second round as continuous building, to the extent that it Court referred to other training programs
with the first.”40 that encouraged the practice of question-


ing outside of Miranda first to secure an
Impact of Seibert on admission prior to proceeding with the
Interrogation Tactics advice of rights. Id.
14
Id. at 2609.
As a result of Seibert, law The issue of 15
Id.
enforcement agencies must coercion goes to 16
Id.
reevaluate their interrogation the heart of 17
Id.
practices to ensure that they are Miranda. 18
Id.
19
consistent with the Court’s Seibert, at 2610.


20
Id.
ruling. The previously endorsed 21
Elstad, at 1289.
practice of holding off on 22
Id.
providing the advice of rights to 23
Id. at 1290.
an arrestee with a follow-up occurs, now must be conducted 24
Id.
“warned” interview, viewed by consistent with the Court’s 25
Id.
some as an effective interroga- mandate in Seibert. There is no 26
Id. at 1294.

tion tactic, will lose its effec- doubt that the impact of pre- 27
Id. at 1295.
28
warning exchanges between Id. at 1296.
tiveness when the confession is 29
Id. at 1293.
suppressed. Thus, department interviewer and an in-custody 30
Seibert, at 2604.
interrogation practices should interviewee on the admissibility 31
Id. at 2610.
continue to reflect the funda- of statements obtained post- 32
Miranda, at 436.
33

mental principles announced by Miranda will be followed 34


Id. at 444.
closely in light of the Court’s Seibert, at 2610.
the U.S. Supreme Court in 35
Miranda, at 443.
Miranda and its progeny. ruling in Seibert. 36
Seibert, at 2610.
37
Id. at 2606-2607.
Conclusion Endnotes 38
Id. at 2607.
39
As noted by the Supreme 1
348 U.S. 436 (1966). 388 F. 3d 1079 (2004).
40
2
Id. at 444. The Fifth Amendment to Id. at 1089.
Court, the Elstad ruling
the U.S. Constitution provides in pertinent
evolved into an interrogation part that “no person…shall be compelled
tactic that encouraged law in any criminal case to be a witness against Law enforcement officers of other than
enforcement to interview an himself.....” federal jurisdiction who are interested
individual who was in custody 3
124 S. Ct. 2601 (2004). in this article should consult their legal
4
Id. at 2605. advisors. Some police procedures
“outside of Miranda” to pave 5
Id. at 2606 ruled permissible under federal
the way to a full confession. 6
Id. constitutional law are of questionable
The decision of the Supreme 7
Id. legality under state law or are not
Court in Seibert has rejected 8
Id. permitted at all.
9
expressed opposition to such Id.

32 / FBI Law Enforcement Bulletin


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

While on traffic patrol, Trooper Kevin Schneider of the Wisconsin


State Patrol observed a vehicle that was being driven erratically. When he
attempted to stop the car, a high-speed chase ensued. Within a few minutes,
the male driver stopped the vehicle in the middle of the road and refused to
exit the car. As Trooper Schneider cautiously approached, the man dis-
played a 7-inch fixed-blade knife and deeply slit his own throat and carotid
artery. The trooper quickly removed the knife from the driver—now going
into shock—and administered first aid to stop the profuse bleeding. Then,
the individual was transported to a local hospital for emergency surgery; he
Trooper Schneider
later recovered. Trooper Schneider’s brave actions and quick thinking
saved the man’s life.

Lieutenants James Heavey and Richard Cochran of


the Greenwich, Connecticut, Police Department were
the first to respond to a house fire. Upon arrival, the
officers found flames under a rear two-story deck and
stairway, the only access to the second- and third-floor
apartments. Fearing the fire would spread and trap the
residents—two women and a young girl, the officers
climbed the burning deck and rescued the three occu-
pants from the building. The swift and heroic actions of
Lieutenant Heavey Lieutenant Cochran
Lieutenants Heavey and Cochran saved the residents
from harm.

Nominations for the Bulletin Notes should be based on either the rescue of one or
more citizens or arrest(s) made at unusual risk to an officer’s safety. Submissions
should include a short write-up (maximum of 250 words), a separate photograph of
each nominee, and a letter from the department’s ranking officer endorsing the
nomination. Submissions should be sent to the Editor, FBI Law Enforcement Bulletin,
FBI Academy, Madison Building, Room 201, Quantico, VA 22135.
U.S. Department of Justice Periodicals
Federal Bureau of Investigation Postage and Fees Paid
Federal Bureau of Investigation
FBI Law Enforcement Bulletin ISSN 0014-5688
935 Pennsylvania Avenue, N.W.
Washington, DC 20535-0001

Official Business
Penalty for Private Use $300

Patch Call

The seal of the city of Connersville serves as The patch of the Gilford, New Hampshire, Po-
the design of the police department’s patch. At the lice Department, a replica of the town seal, features
center is an old canal house, representing the trans- the waters of Lake Winnipesaukee with mountain
portation of goods; smokestacks, depicting indus- ranges in the background. The boat represents the
try; and a Spartan head, symbolizing excellence in recreational opportunities offered by Gilford.
school athletics. The colors are those of the United
States.