FBI Law Enforcement Bulletin

December 2005
Volume 74
Number 12

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

Robert S. Mueller III
Director

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

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Editor
John E. Ott

Associate Editors
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David W. MacWha
Bunny S. Morris

Art Director
Denise Bennett Smith

Assistant Art Director
Stephanie L. Lowe

Staff Assistant
Cynthia H. McWhirt

This publication is produced by members of the Law Enforcement Communication Unit, Training and Development Division.

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Cover Photo
©Mark C. Ide

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

Features

The Admissibility of Digital Photographs in Criminal Cases
By David P. Magosky
Agencies have many considerations in ensuring the admissibility of digital photographs in criminal cases

Departments

Unusual Weapon
Pepper Spray Pen

Perspective
Systemic Learning Management

Book Review
Police Responses to Persons in Mental Health Crisis

Bulletin Reports
Public Relations
Corrections

2005 Subject Index

2005 Author Index

Other Articles

FBI Law Enforcement Bulletin Author Guidelines

Bulletin's E-mail Address

Bulletin Notes

Patch Call

The Admissibility of Digital Photographs in Criminal Cases
By David P. Nagosky

Representing today’s trend in photography, digital cameras continue to rapidly replace traditional film-based models. As prices keep dropping, consumer ownership will become even more prevalent. Similarly, law enforcement agencies have begun to favor digital cameras— just the latest in a long line of technological innovations used by departments to collect and document evidence. Digital photography offers law enforcement numerous benefits, including instant access to images, rapid transportability of pictures within a department or to outside agencies, and decreased cost and time as these cameras require no film development.

Of course, photographs— which generally hold substantial weight—serve as one of the most effective forms of evidence in court. However, many individuals in the legal community fear the potential abuse and manipulation of digital images. Therefore, they consider these pictures inadmissible under current evidentiary rules.

To this end, an examination of the admissibility of film-based photographs and an analysis of cases, legislation, and legal commentary pertaining to digital pictures can provide valuable insight. Further, agencies can follow recommendations as to how they can help ensure the admissibility of their digital photographs under the law as it develops in the United States.

FILM-BASED PHOTOGRAPHS
People can manipulate film-based pictures. Throughout the photographic process, an individual skilled in photography can alter the image.¹ For instance, while taking a picture, a person can use a narrow f-stop and a fast shutter speed to make a photograph taken during the day appear as if someone took it at night.

Individuals also can alter a photograph during the development stage. “Through the judicious selection of exposure times for the paper emulsions and filters to screen selective color wavelengths, a skilled photographer can produce a different image from the one... viewed through the camera’s eyepiece. This image could appear to the untrained eye to be...perfectly legitimate...yet in subtle ways could be misleading in the jurisprudential context.”² Also, during development, a technique known as crop and splice can change the picture. Using this method, a person combines two negatives by cropping out a portion of one and splicing in its place part of another.³

Modifications of film-based photographs have presented problems for years.⁴ “The forensic ramifications...are obvious. A skilled photographer could artfully assemble through either pre- or postphotographic processing a photograph that could either be highly incriminating or exculpatory. Litigants could then offer that photograph as evidence in support of their cause. Under the Rules of Evidence, to authenticate a photograph, a witness need only to say that the photograph accurately depicts the scene, object, or person. In this scenario, if a witness were willing to deceive the court with a manipulated photograph, discovery of such perjurious intent would be prob-lematic.”⁵ However, someone suspecting manipulation of a picture always can ask for the negative to trace its origin.

...many individuals in the legal community fear the potential abuse and manipulation of digital images .

Any party seeking to introduce a film-based photograph into evidence must demonstrate its relevancy (i.e., add to the likelihood that an event did or did not occur) and authenticity (i.e., a knowledgeable person must verify the image’s accu-racy).⁶ For example, a detective photographs a drug deal. The picture depicts two individuals exchanging a package. The prosecutor wants to enter the photo into evidence at the criminal trial of the individual who received the drugs. The picture is relevant because it shows the person present at the scene where the deal occurred and in receipt of the package. To authenticate the photograph, the prosecutor can place on the stand the detective who took the picture or any officer who witnessed the transaction and elicit that the image actually represents the person, package, place, and time. After establishing the photograph’s relevancy and authenticity, the prosecutor can move to admit it into evidence.

One additional rule exists that pertains to the admissibility of all photographs. Under the Best Evidence Rule, to prove the content of a picture, courts generally require the original— defined as the negative or any print therefrom.⁷ Therein lies a major perceived problem with digital images: the absence of a traceable origin to rely upon (i.e., no negative).⁸

DIGITAL PHOTOGRAPHS
Digital photographs include pictures processed by computer. They consist of picture elements, or pixels—computer codes consisting of bits of information representing specific colors, intensities, and locations. More pixels result in a sharper and clearer image.

Modifications of film-based photographs have presented problems for years .

Legislation
Alternatively, a legislator sponsored Wisconsin Assembly Bill 584, which “prohibits the introduction of a photograph... of a person, place, document... or event to prove the content... if that photograph...is created or stored by data in the form of numerical digits.”²⁶ The legislator apparently “became upset when high school students manipulated a digital photograph by putting heads on bodies of the opposite sex.”²⁷ If this bill becomes law, digital photographs will not be admissible in Wisconsin courts.

Legislators in Hawaii also have concern about the admissibility of digital photographs. However, rather than taking the extreme position of seeking a ban in courts, the legislature directed the Hawaii Supreme Court to establish written procedures governing police use of digital photography in traffic accident reconstructions. The directions to the Hawaii Supreme Court are contained in Hawaii House Bill 1309, which states, “[a]lthough current rules do not preclude the admission of digital photographs as evidentiary material, such admissibility is contingent upon the basic data and collection technique meeting a threshold requirement of reliability that has not yet been established by the Hawaii Supreme Court’s Standing Committee on the Rules of Evidence.”²⁸

Legal Commentary
Many individuals in the legal community remain largely unreceptive to allowing the admission of digital photographs under the current rules of evidence. One author stated that “[a]lthough photographs may be manipulated, the potential for making subtle but significant alterations to digital images gives cause for concern that digital images may be unfit for use as evidence in a court of law”²⁹and proposed amending the current evidentiary system specifically to deal with digital imaging.

In another article voicing concern over the admissibility of digital photographs under current evidentiary systems, the authors stated, “As noted, current principles of authentication have developed partly in response to certain assumptions about the inherent limitations of traditional media technologies. The degree to which these assumptions are appropriate in the context of today’s highly sophisticated multimedia tools is an open question posing challenges for advocates, judges, experts, and legislative bodies alike.”³⁰And, another

author noted that “[w]hile advances in technology are generally viewed as positive within society as a whole, the potential for incredible abuse associated with electronic photography is, or should be, troubling to the legal profession in particular.”³¹

A final author nicely summed up such concerns among those in the legal community by saying, “As the conventional photograph goes the way of the horse-drawn carriage and the vinyl phonograph record, courts and legislatures will have to establish procedures to assure the accuracy and integrity of visual evidence admitted into legal proceedings. If existing doctrines cannot rise to the task, new doctrines will have to develop.”³²

As evidenced by these statements, not everyone in the legal community agrees with any court decision admitting digital photographs under the current Rules of Evidence. At its October 18, 2002, meeting in Seattle, Washington, the Advisory Committee on the Federal Rules of Evidence considered the concerns of commentators who argue that digital photographs should not be admitted under current evidentiary rules. The committee held a preliminary discussion on whether to amend Rule 901, the authentication requirement, or if a new rule proved necessary to deal with digital photographs. Ultimately, the committee members were skeptical of the necessity of a new rule and felt that Rule 901 “was flexible enough to allow the judge to exercise discretion to assure that digital photographs are authentic and have not been altered.”³³ However, the committee did direct its reporter to “prepare a background memorandum on the use of digital photographs as evidence” so that it could consider changes to the rules in the fu-ture due to its “interest in assur-ing that the rules are updated when necessary to accommodate technological changes.”³⁴

As for the requirements of the Best Evidence Rule, a logical reading indicates that digital photographs are admissible under that rule. Generally, it requires the original to prove the content of a writing, recording, or photograph.³⁵ Under the Best Evidence Rule, “[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’”³⁶ Therefore, a digital image downloaded to a computer and subsequently printed would seem to qualify.³⁷

RECOMMENDATIONS

At a minimum, agencies should establish standard operating procedures that focus on two goals that will ensure the admissibility of their digital photographs in court: 1) preserve the original and 2) follow a reliable process demonstrating the integrity of the image. Ideally, departments will concentrate on “chain of custody, image security, image enhancement, and release and availability of digital images.”³⁸

When attempting to preserve the original, unmanipulated image, agencies should store it on a compact disc that can be written to only once and then is only readable (i.e., a CDR, rather than a CD-RW). This ensures that no one can remove or alter the data without copying the original. After capturing an image, agencies should immediately transfer it to a CD-R and label the disc with the date, time, and place the picture was taken; the individual who captured the image; and other important information associated with the photo.

...an examinations of the admissibility of film-based photographs and an analysis of cases, legislations, and legal commentary...can provide valuable insight .

Additionally, agencies should preserve the digital image in its original file for-mat,³⁹ rather than compressing it for storage. This allows the camera to capture and store the most information possible. When departments must enhance a picture, they should create a new image file, saving it separately and not writing over the original.

When establishing reliable procedures that demonstrate the integrity of images from creation to admission into evidence, agencies must limit access to the files. As one commentator stated, “[i]mage handling procedures should be standardized and access to digital images should be strictly controlled.”⁴⁰ The process used “should be able to demonstrate: who took the picture and when, where and how the image was stored, who had access to the image from the time it was taken through the time it is introduced in court, and any details on whether or not the image has been altered and how.”⁴¹ In this regard, reliable procedures will help prevent challenges to admissibility by defense counsel. Also, they will allow agencies to track who had access to the photographs and what, if anything, was done with them. Of course, any reliable procedures must begin with preserving the original.

Also worthy of note, some law enforcement agencies use commercial photo labs for developing and processing film. Following such a procedure opens up possible challenges when departments seek to admit these pictures in court.⁴² In this regard, digital images prove superior to film-based photographs because no one outside the department handles them.

CONCLUSION
Digital photographs serve as powerful, efficient tools for law enforcement. The ability to take a picture and instantly view and distribute it helps officials in their efforts to serve and protect their communities. Agencies should not become hindered by those in the legal system reluctant to stay in step with advances in technology. As one commentator stated, “Fear about manipulation of digital images is exaggerated, perhaps because of the perceived novelty of the technology. We often fear what is or seems new. Certainly, this fear has made many forget a secret of analogue photography [traditional film-based photographs], namely that conventional photographs may be manipulated to alter reality and at worst to fabricate false evidence.”⁴³

The trend in case law points to the admissibility of digital photographs as evidence, although many in the legal community rightfully suggest that digital photographs are subject to abuses. To alleviate those fears, law enforcement agencies should attempt to establish standard operating procedures that, at least, include the preservation of and accountability for the original image from creation to admission into evidence. Like so much in law enforcement, the admissibility of digital photographs will depend on the veracity and integrity of the authenticating official.

Ultimately, to help prevent the abuse of digital photographs, judges and attorneys on both sides of the courtroom must become aware of the potential abuses and familiar with the associated technology. As a result, the underlying fears will dissipate, and, in those rare cases where a dishonest person may falsely alter an image, the judicial system will recognize and effectively address the problem.

Endnotes

¹ Judge Victor E. Bianchini and Harvey Bass, Perspective, A Paradigm for the Authentication of Photographic Evidence in the Digital Age, 20 T. Jefferson L. Rev. 303, 306 (1998).

² Id. at 303, 308.
³ Id.
⁴ “Suggested Procedures for Preserva- tion of Digital Crime Scene Photographs”; retrieved from http://www.policecentral. com/wp-crimescene.htm.
⁵ Supra note 1 at 303, 309.
⁶ See, e.g., Federal Rules of Evidence Rule 401, Rule 402, and Rule 901; see also M. L. Cross, Annotation, Authentication or Verification of Photograph as Basis for Introduction in Evidence, 9 A.L.R. 2d 899.
⁷ See, e.g., Federal Rules of Evidence Rule 1001 and Rule 1002.
⁸ Supra note 1 at 303, 311-312 (“However, modern technology has tossed another monkey wrench into the evidentiary gearbox. Traditional emulsive photography always had a traceable origin to rely upon. The courts or opposing counsel could always demand, ‘Show me the negative.’ However, it is now possible to create a photograph digitally without a negative and no traceable parentage.”).
⁹ Wesley M. Baden, “Digital Photographs as Evidence in Utah Courts”; retrieved from http://www.utahbarjournal. com/html/march_2004_2.html.
10 Id.
¹¹ Christina Shaw, “Admissibility of Digital Photographic Evidence: Should It Be Any Different Than Traditional Photography,” American Prosecutors Research Institute 15, no. 10 (2002); retrieved from http://www.ndaa-apri.org/ publications/newsletters/update_volume_ 15_number 10_2002.html.
¹² Jill Witkowski, Can Juries Really Believe What They See? New Foundational Requirements for the Authentication of Digital Images, 10 Wash. U. J.L. & POL’Y 267, 270 (2002); see also William W. Camp,Practical Uses of Digital Photography in Litigation, 2 Ann. 2000 ATLA-CLE 1463 (2000). (“Image quality in digital photography commonly refers to the amount of compression, if any, that is used to store the electronic digital image.”)
¹³ Supra note 12 (Witkowski).
¹⁴ 274 Ga. 348, 553 S.E. 2d 803 (2001).
¹⁵ 274 Ga. 348, 349, 553 S.E. 2d 803, 805 (2001).
¹⁶ Id. (citing Ray v. State, 266 Ga. 896, 897(1), 471 S.E. 2d 887 (1996) (videotapes admissible with the same limitations and on same grounds as photographs)).
¹⁷ 264 A.D. 2d 690, 691, 698 N.Y.S. 2d 1 (1st Dept., 1999).
¹⁸ 90 Wash. App. 100, 950 P.2d 1024 (Wash. Ct. App. 1998).
¹⁹ 90 Wash. App. 100, 109, 950 P.2d 1024, 1028 (Wash. Ct. App. 1998).
²⁰ 90 Wash. App. 100, 106, 950 P.2d 1024, 1027 (Wash. Ct. App. 1998).
21 Id.
²² 90 Wash. App. 100, 108, 950 P.2d 1024, 1028 (Wash. Ct. App. 1998), but see Michael Cherry, Informal Opinion, 27JUL Champion 42 (July 2003) (“The Iowa International Association for Identification (IAI) Web site highlights State v. Hayden, 950 P.2d 1024 (Wash. App. 1998), where the Washington Court of Appeals noted experts’ claims that digital photographs are superior to regular film photographs because digital photographs can pick up and differentiate between many more colors and shades of gray than film photographs. Unfortunately this is not true, forensic quality film offers at least as many colors and more shades of gray than digital images.”).
²³ 90 Wash. App. 100, 108, 950 P.2d 1024, 1028 (Wash. Ct. App. 1998).
²⁴ 2003 WL 22683442 (Cal. Ct. App. 2003) (not an officially published opinion).
²⁵ Id. at 4
²⁶ 2003 WI A.B. 584; and supra note 9.
²⁷ Supra note 9.
²⁸ Hawaii House Bill 1309; and supra note 9.
²⁹ Supra note 12 (Witkowski) at 267, 273.
³⁰ William Sloan Coats and Gabriel Ramsey, Fair, Accurate, and True? Authenticating Evidence in the Age of Digital Manipulation, 11 No. 1 Prac. Litigator 31, 32 (2000).
³¹ Christine A. Guilshan, A Picture Is Worth a Thousand Lies: Electronic Imaging and the Future of the Admissibility of Photographs into Evidence, 18 Rutgers Computer & Tech L.J. 365, 373374 (1992).
³² Roderick T. McCarvel, “You Won’t Believe Your Eyes: Digital Photography as Legal Evidence”; retrieved from http:// www.seanet.com/~rod/digiphot.html.
³³ Advisory Committee on Evidence Rules, Minutes of the Meeting of October 18, 2002, 11; retrieved from http:// www.uscourts.gov/rules/Minutes/ 1002EVMin.pdf.
34 Id.
³⁵ See, e.g., Federal Rules of Evidence Rule 1002.
³⁶ See, e.g., Federal Rules of Evidence Rule 1001(3).
³⁷ Supra note 12 (Camp) (“Arguably, a photograph taken by a digital camera of a particular event...is an ‘original’ photograph as defined by Federal Rules of Evidence 1001(3)....”); but see Roderick T. McCarvel, “You Won’t Believe Your Eyes: Digital Photography as Legal Evidence,” retrieved from http:// www.seanet.com/~rod/digiphot.html (“Worse yet is any incarnation of the best evidence rule, which follows the Federal Rules of Evidence in defining a printout as an ‘original’ for purposes of the rule.”).
³⁸ Steven B. Staggs, “The Admissibility of Digital Photographs in Court”; retrieved from http://www.crime-scene-investigator. net/admissibilityofdigital.html.
³⁹ Id.
⁴⁰ Supra note 11.
⁴¹ Supra note 11.
⁴² “Digital Camera Considerations for Crime Scene Investigations”; retrieved from http://www.policecentral.com/wp-digicam.htm.
⁴³ Supra note 9.

Unusual Weapon

Perspective

A Prescription for Systemic Learning Management
By Vertel T. Martin

Challenging Mental Models
According to Senge, mental models exist in the minds of members of organizations.⁴ These include the thoughts, beliefs, and assumptions that we hold based upon our knowledge, experiences, and opinions. These mental models are so deeply ingrained in our minds that we cannot readily access nor easily examine them and, therefore, cannot change them without considerable effort. The task of learning requires that we first exhume and scrutinize our mental models because “they influence everything we do, sometimes without us even knowing it.”⁵ Only then can we challenge the premises upon which we base them.

This means that police officials need to engage in premise reflection in the way that adult-learning theorist Dr. Jack Mezirow envisioned.⁶ Are our thoughts, beliefs, and attitudes based upon sound reasoning and up-to-date evidence, or are they the result of tradition, malaise, or officially sanctioned knowledge? Are they frozen in time, or can they be defrosted periodically to respond to the elasticity required for the organization to survive?

Sharing the Vision
To effect change in an organization, leaders should "dismantle old cultures in order to adapt to new realities."¹¹ Executives must announce new goals and institute new ways of conducting police-related affairs. They must publich and distribute new vision and mission statement, as well as define new values and goals.

Senge stressed the necessitiy of an organization having a shared vision and mission.¹² When it has these, employees or members of that entity have a shared goal, direction, and purpose. The understand "why the organization exists and how their roles contribute to making the organization better." ¹³

Introducing Systems Thinking

Executives must introduce and operationalize the idea of systems dynamics and not allow units to operate in isolation. They need to stress the imperative of interconnectedness of various intraorganizational units to sustain the institution as a whole. For example, detective squads should work with and through internal and external support and operational units and readily share information, intelligence, and newly acquired learining strategies with other specialized squads, units, divisions, bureaus, and agencies. Only then will the execution of tactics and strategies occur in a coordinated, systematic fashion.

Systems thinking is a pardigm that explains the interconnectedness and interdependence of the parts of an organization. This reliance is so profound that a failure of the functionality of a part can adversly affect the entire agency. Similarly, proficiency of the part can lead to positive effects on the system or institution (e.g., sustainability, success, and survival).

Systems thinking deconstructs the notion of the organization as a machine made up of interchangeable parts. Instead, Senge noted that "members of an organization and the causes of problems in the organization are part of a single system. It does no good, therefore, to blame others of outside circumstances for any difficulties being faced by the organization—the solutions to problems being faced by the organization lie within the organization." ¹⁴ This notion has bee validated from the point of view of the entire criminal justice system, as well as from its component parts.

Conclusion
Under the former New York City police commissioner and depouty commissioner's tuteleage and guidance, systems-thinking enlightened managers, like me, began asking some pertinent questions. What have we learned? How do we learn? No longer content with acquiring mere informational content, we began to concern ourselves with "the process of acquiring, processing, operationalizing, and storing information."¹⁵ We were leaders who became learners ourselves. We, in turn, inspired new leaders and learners. We began to open up ourselves to different ways of knowing and learning. Hence, new crime-control strategies began to be "unlearned."¹⁶

Eventually, the momentum of organizational learning and systems thinking will begin to accelerate throughout the agency. The "carriers" of change will become addicted to the idea of what can be. They, in turn, will spread their infections. This new philosophy will "enter into the stream of debates and deliberations" that will affect the organization's "policies, programs, and practices."¹⁷ In short, a systemically based institution is on its way to becoming a successful, results-oriented learning organization.

Endnotes
¹ For additional background information, see http://www.infed.org/thinkers/senge.htm
² C. Kochner and T. R. McMahon, "What TQM Does Not Address," in Total Quality Management, ed. W. Bryan (San Francisco, CA: Jossey-Bass, 1996), 89.
³ B. Frydman, I. Wilson, and J. Wyer, The Power of Collaborative Leadership: Lessons for the Learning Organization (San Diego, CA: Elsevier Butterworth-Heinemann, 2000), 5.
⁴ Supra note2, 90.
⁵ Supra note2, 89-90.
⁶ S. Merriam and R. Caffarella, Learning in Adulthood: A Comprehensive Guide, 2nd ed. (San Francisco, CA: Jossey-Bass, 1999), 328.
⁷ Supra note2, 90.
⁸ Supra note2, 91.
⁹ F. Capra, The Web of Life (New York, NY: Anchor Doubleday, 1996).
¹⁰C. Argyris and D. Schon, Organizational Learning II: Theory, Method, and Practice (Boston, MA: Addison-Wesley, 1996).
¹¹ Supra note 3, xv.
¹² Supra note 2, 92.
¹³ Supra note 2, 92.
¹⁴ Supra note 2, 93.
¹⁵ Supra note 10, 3.
¹⁶Supra note 10, 3-4.
¹⁷ Supra note 10, 7.

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Book Review

Enhancing Police Response to Persons in Mental Health Crisis: Providing Strategies, Comunication Techniques, and Crisis Intervention Preparation in Overcoming Institutional Challenges by Don. W. Castellano-Hoyt, Charles C. Thomas Publisher, Springfield, Illinois, 2003.

This work is best suited for law enforcement administrators and field supervisors who want ot understand persons with mental illness and their interactions with officers. For the last 15 to 20 years, articles have been written and lectures given about htis topic but few books have appeared. Enhancing Police Response to Persons in Mental Health Crisis fills that void. The author presents a basic overview of major nemtal illnesses, a discussion of the interaction between person with mental illnesss and police officers, and frank account from a person personlly familiar with both the mental health and criminal justice systems. Training over 7,000 police officers regarding persons with mental illness and serving as a negotiator in over 200 barricade situations, some involving SWAT, the author has become intimately familiar with crisis netotiation. The commander o the San Antonio PoOlice Department's Crisis Negotiations Unit has told him many times during crisi negotiations that "you're the expert here. Tell me how much longer befor this fellow will surrender." Don Castellano-Hoyt knows that in such situattions, ther is "no time for deferring the diagnosis or consulting a manual."

The book contains 16 chapters and 291 pages of practical information that my be read in its entirely or chapter by chapter. One chapter contains information that a police administrator could present in small amounts at daily roll calls. The author includes real-life scenarios in each chapter that come from his personal experience. These would make great discussion topics. The book has chapters regarding specific mental illness, such as schizophrenia (chapter 3) and depression (chapter 4). It also offers chapters about police officers executing mental health crisis interventions (chapter 5), suicide interventions (chapter 6), and emergency detention (chapter 8). Chapters concerning dealing with special populations (chapter 7) and communicating with persons with mental illness (chapter 9) provide practical techniques for filed officers. Chapter 10 includes a discussion of psychiatric diagnoses and the manual used to make them.

The end of the book contains a list of each state and the District of Columbia covering statutes defining mental illness, nonpeace officer detention, and provisions for emergeny detention. This book is concise, practical, easy to read, and written by someone knowledgeable about the law enforcement officers and persons with mental illness. The author comes across as interested in solving real-life problems. He also is concerned for both officers and mental health consumers, which is refreshing and gives the book integrity. It is the integrity that will cause the reader to want to complete Don Castellano-Hoyt's book and refer to it in the future.

Reviewed by
Dr. Daniel W. Phillips
Assistant professor of
sociology and criminology
Lindsey Wilson College
Columbia, Kentucky

The 2004-2005 U.S. Supreme Court term included several cases addressing a variety of constitutional criminal procedural issues and employment-related matters of interest to the law enforcement community. One case addressed the extent to which the Constitution recognizes the ability of law enforcement to use canine detection, ruling on whether the Constitution requires articulable and specific facts indicating criminal activity to use a canine. Also before the Supreme Court was a case involving the extent to which law enforcement amy exercise authority over occupants of a residence for which the officers have a search warrant to search. In two other cases, the Supreme Court ruled on whether the federal statute criminalizing conspiracy to launder money requires proof of an overt act and the extent to which a defendant can be visibly shackled during the penalty phase of a trial. Regarding employment matters, the Court provided further guidance on the extent to whic speech engaged in by a government employee is protected under the First Amendment and also ruled on an issue arising under the Age Discrimination in Employment Act. A brief synopsis of each of these cases follow.

© Comstock Images

Illinois v. Caballes ,
125 S. Ct. 843 (2005)

The Supreme Court held that a dog sniff of the exterior of an automobile conducted during the course of a lawful vehicle stop is not a search and may be performed without any suspicion that the vehicle's occupants are engaged in criminal activity. In so holding, the Court distinguished Kyllo v. United States, ¹ in which it held that the use of thermalimaing to detect a detail of the interior of a home not otherwise knowable was a search.

Muehler v. Mena,
125 S. Ct. 1465 (2005)

In this case, the Supreme Court provided additional guidance on the authority to detain, handcuff, and question occupants during the execution of a search warrant. In Michigan v. Summers, ⁸ the Court ruled that officers serving a search warrant for drugs could detain occupants of the premises while searching to “prevent flights in the event incriminating evidence is found, minimizing the risk of harm to the officers,” and to facilitate the search, because occupants’ “selfinterest may induce them to open locked doors or locked containers to avoid the use of force.”⁹ Although the Court in Summers clearly held that a warrant to search for contraband carries with it the limited authority to detain occupants of the premises while a search is conducted, Summers did not resolve whether detained occupants could be handcuffed, or for how long, or questioned, nor whether its ruling also applied to searches for evidence as opposed to contraband. These issues were addressed in Muehler v. Mena.

Police in Simi Valley, California, obtained a warrant in connection with a drive-by shooting to search a suspected gang member’s house for weapons, ammunition, and gang paraphernalia. Because of the high-risk nature of the case, SWAT made the initial entry. Four occupants, including Iris Mena, were handcuffed at gunpoint and taken to a garage on the premises, where they were detained for the 2 to 3 hours it took to finish the search. Although Mena was not implicated in any crime, an INS agent who had accompanied the police briefly questioned her about her identity and immigration status. She was ultimately released. Mena brought a civil action against officers alleging a violation of her Fourth Amendment rights. The U.S. District Court for the Central District of California upheld a jury verdict awarding Mena $60,000 in damages. The U.S. Court of Appeals for the Ninth Circuit affirmed.¹⁰ In upholding the judgment against the police, the Ninth Circuit took issue with the continued detention of Mena during the search despite determining that she was not a suspect, as well as the use of handcuffs during the search despite what the court believed to be insufficient information suggesting she posed a threat to officer safety.¹¹

Deck v. Missouri ,
125 S. Ct. 2007 (2005)

In this case, the Supreme Court considered whether shackling a convicted offender during the penalty phase of a capital case violates the Constitution. The Court determined that the Constitution, in fact, does forbid the use of visible shackles during the penalty phase, just as it forbids thier use during the guilt phase unless specific circumstances justify their use.¹⁹

Carman Deck was a convicted double murderer when he appeared before a second jugy who was to recommend either life in prison or death as his sentence.²⁰ From the outset of the sentencing proceeding, Deck was shackled with leg irons, handcuffs, and a belly chain.²¹ At the conclusion of the penalty phase, Deck received tow death sentences.²² Deck appealed the sentencing as a violation of Missouri law and the U.S. Constitution. The Missouri court rejected the claims and affirmed the sentence. He then appealed to the U.S. Supreme Court.

The Supreme Court initially recognized that "[t]he law has long forbidden routine use of visible shackles during the guilt phase"²³ of criminal cases. Justice Breyer, the author of the majority opinion, then applied the threefold legal rationale for this longstanding prohibition to the situation at issue in Deck—whether the use of visible shackles during the penalty phase violated Deck's right to due process.

The first reason for not routinely allowing shackles during the guilt phase of criminal trials is because "the criminal process presumes that the defendant is innocent unil proven guilty".²⁴ While this presumption is no longer at play during the sentencing proceeding for a convicted defendant,

similar concerns are impacted. While the jury may no longer be deciding between guilt and innocence, it is deciding between life and death, and accuracy in making that decision is [no] less critical.²⁵ The second traditional reason for prohibiting shackles in court is that they diminish a person's right to a meaningful defense. A person in shackles may decide against taking the witness stand on his own behalf, and shackles may interfere with the ability to communicate with counsel. The right to a meaningful defense is at least as equally important during the guilt phase of a capital case.

Finally, the Court considered the third traditional factor behind the ban on courtroom shackles. The Court noted that "judges must seek to maintain a judicial proceed."²⁶ This factor mitigates aginst the use of shackles during the penalty phase as much (if not more) than at the guilt phase. If the use of shackles at trial affronts the dignity and decorum of trial proceedings, then to have a man plead for his life in shackles certainly undermines the dignity of thoses proceedings as well.²⁷

While the Court banned the systematic use of shackles during penalty proceedings, it recognized that not all uses of restraints during these proceedings violate the Constitution. The decision to shackle, though, must be based on case-specific circumstances. Restraints, up to and including shackling, should reflect particular concerns, such as special security needs or escape risks, related to the defendant.²⁸ In making this allowance, Justice Breyer acknowledged that tragedy can result "if judges are not able to protect themselves and their courtrooms. But given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case."²⁹

© Comstock Images

Whitfield v. United States,
125 S. Ct. 687 (2005)

In this case, a number of codefendants were charged by an indictment that described, in general terms, the manner and means used to accomplish the objects of a money-laundering conspiracy. The indictment, however, did not charge the defendants with any overt act in furtherance of the scheme. At trial, the government presented evidence that the defendants, as principals in Greater Ministries International Church, managed and promoted a fraudulent investment scheme. At the close of the evidence, the defendants asked the district court to instruct the jury that the government was required to prove beyond a reasonable doubt that at least one of the coconspirators had committed an overt act in furtherance of the money-laundering conspiracy. The court denied the request, and the jury returned a verdict of guilty.

The Eleventh Circuit Court of Appeals affirmed the convictions, holding that the jury instructions were proper because the money-laundering conspiracy charge³⁰ does not require proof of an overt act.³¹ The Eleventh Circuit noted that while neither it nor the Supreme Court had previously determined whether commission of an overt act is an essential element of a conviction under the money-laundering conspiracy statute, other circuit courts were split on the issue.³² Those circuit courts that had found that the statute required proof of an overt act relied, erroneously in the view of the Eleventh Circuit, on case law interpreting the general conspiracy statute (Title 18, U.S. Code, section 371).³³

The U.S. Supreme Court agreed to hear the case and held that conviction for conspiracy to commit money laundering does not require proof of an overt act in furtherance of the conspiracy. Writing for a unanimous Court, Justice O’Conner looked to the case of United States v. Shabani ³⁴ in which the Court had held that the nearly identical language of the drug conspiracy statute (Title 21, U.S. Code, section 846) does not require proof of an overt act. Justice O’Conner pointed out that, in deciding Shabani, the Court found instructive a comparison between the money-laundering conspiracy statute and the general conspiracy statute that expressly includes an overt-act requirement. Indeed, the general conspiracy statute supercedes the common law rule by expressly including an overt-act requirement.³⁵ The Court concluded that the rule applied in Shabani dictated the outcome here as well.³⁶ Because the plain text of the money-laundering conspiracy statute does not expressly make commission of an overt act an element of the conspiracy offense, the government need not prove an overt act to obtain a conviction.

Smith v. City of Jackson, Mississippi,
125 S. Ct. 1536 (2005)

This case provided the Supreme Court an opportunity to decide whether the Age Discrimination in Employment Act (ADEA)³⁷ afforded complainants an opportunity to sue, not on the basis of direct discrimination (disparate treatment) but, rather, by arguing indirect discrimination, referred to as disparate impact. Smith v. City of Jackson, Mississippi,³⁸ involved a claim on the part of certain police and public safety officers alleging that the city’s revision of a pay plan designed to bring salaries to a competitive level with other municipalities by providing more of a percentage increase for less senior officers as opposed to officers over the age of 40 had a discriminatory impact on older officers in violation of the ADEA. The Fifth Circuit Court of Appeals rejected this theory, ruling that a disparate impact theory of discrimination is not available under the ADEA.³⁹

The Supreme Court reversed, holding that the ADEA should be read consistent with Title VII of the Civil Rights Act with respect to allowing for consideration of a disparate impact theory of liability under the ADEA. However, the Court ultimately held that the plaintiffs failed to establish such a claim. In so ruling, the Court concluded that while a disparate impact claim of discrimination is viable under the ADEA, language in the ADEA itself restricts its scope as compared with disparate impact discrimination under Title VII of the Civil Rights Act. The ADEA contains a provision that significantly limits its scope by allowing for an employer to take any action otherwise prohibited by the ADEA where the differentiation is based on reasonable factors other than age.⁴⁰ In other words, can the discrimination be explained by a nonage factor that was reasonable? Additionally, to establish a disparate impact claim, the plaintiffs must identify a specific test or requirement or point to a specific policy that has the disparate impact. The plaintiffs may not simply allege that a disparate impact exists.⁴¹

The Supreme Court concluded that the plaintiffs failed to identify a specific practice that had a disparate impact. The Court stated that “petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers.”⁴² The Court further concluded that the city’s pay plan was based on a reasonable factor other than age, in this case, seniority. While recognizing the theory of liability— disparate impact—as viable under the ADEA, the Court concluded that the plaintiffs failed to establish a case.

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City of San Diego v. Roe,
125 S. Ct. 521 (2004)

In City of San Diego v. Roe, the Supreme Court provided guidance on the extent to which speech and expressive conduct on the part of public employees is considered as relating to a matter of public concern. This finding is crucial to the viability of a claim brought by a government employee challenging an adverse employment action on the grounds that it violates the First Amendment. The long-established framework for determining the constitutionality of taking adverse action against a government employee includes balancing the interests of the employee in engaging in the speech or expressive conduct and the interests of the employer.⁴³ In the seminal case of Connick v. Myers,⁴⁴ the Supreme Court announced a threshold inquiry that must be met requiring a finding that the speech or expressive conduct is a matter of public concern prior to balancing the interest of the employer versus the employee. The contours of the concept pf public concern were addressed during the 2004-2005 Supreme Court term.

In City of San Diego v. Roe, a police officer was terminated after the department determined that the he had been selling homemade, sexually explict videos on an adult-only area of the Internet. The videos depicted him in vintage law enforcement uniforms but not specific uniform of his department. The department ordered him to cease his activities. He compled to some degree but continued to sell some items. The department then fired him. The Ninth Circuit Court of Appeals ruled that Roe's activities fell with the category of speech touching on a matter of public concern, particularly as it occurred off duty and away from the employer's premises.⁴⁵ The case was remanded to the lower court to weigh the interests of the departmnet versus those of the officer. The city appealed the Ninth Circuit's ruling to the Supreme Court.

The Supreme Court recognized that "the contours of the public concern test are not well-defined."⁴⁶ However, the Court noted that Connick did offer some guidance by directing tha the "content, form and context of a given statement, as revealed by the whole record"⁴⁷ should be considered. The Court also indicated that in Connick, it referred to the standard used in prior rulings interpreting governmental intrusions into privacy as the one that should apply in interpreting public concern. Applying these principles in Roe, the Supreme Court stated

These cases make clear that public concern is something that is a subject of legitimate news interest; that is a subject of general interest and of value and concern to the public at the time of publication.⁴⁸

Applying these principles to the expressive conduct in the cse at hand, the Supreme Court state that "there is no difficulty in concluding that Roe's expression does not qualify as a matter of public concern under any view of the public concern test."⁴⁹ Accordingly, there is no need to apply the balancing of interests test, and the termination did not violate the First Amendment.

Cases Set for 2005-2006

While the Court will continue to accept cases for consideration once the 2005-2006 term begins, it has agreed to hear several cases during this term of interest to the law enforcement community. Notably, the Supreme Court agreed to hear Georgia v. Randolph⁵⁰ to resolve the conflict existing in tate and federal courts on whether an occupant may give valid consent to law enforcement over the objections of another occupant when both the consentor and non-consentor have authority to give consent to search the common areas of premises shared among the two. In Booker T. Hudson v. Michigan,⁵¹ the Court will consider whether evidence seized following a violation of the knock and announce rule should be subject to a per se admissibility rule under the inevitable discovery doctrine. In an employment-related matter, the Court agreed to hear Garcetti, et al. v. Ceballos,⁵² which may further clarify the concept of public concern within the meaning of the First Amendment.

Endnotes

² People v. Caballes, 207 Ill. 2d 504, 510; 280 Ill. Dec. 277, 280; 802 N.E. 2d 202, 205 (2003).

⁷ Id. (The U.S. Supreme Court vacated the judgment and remanded to a District Court of Appeal of Florida for further consideration in light of Caballes, a case involving the dog sniff of the exterior of a residence. See, Florida v. Rabb, 125 S. Ct. 2246 (5/16/2005). In Rabb, a Broward County Sheriff’s Office detective and drug dog walked from a public roadway in front of the residence up to the front door where the dog alerted. This information was used to obtain a search warrant for the residence. The Florida court had ruled that the use of a dog sniff to reveal the presence of drugs within a home was a search in light of Kyllo. See, State v. Rabb, 881 So.2d 587 (Fla. App. 4 Dist. 2004)).

¹⁰ Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003).

¹⁵ Id. at 1471. Mena underscores a distinction between the categorical rule that permits the detention of occupants while serving a search warrant and the more limited rule that permits the use of handcuffs only when it is reasonable to

do so. Detention of occupants always is permitted without further justification while the search is completed, but the use of handcuffs will be evaluated as a use of force that must be justified on the basis of the circumstances confronted.

¹⁸ Id. (It should be noted that the Court remanded the case on the question of whether Mena could show that she had been detained after the search was completed. This suggests that routine detention should end once the search is completed.) ¹⁹ Deck v. Missouri, 125 S. Ct. 2007, 2009 (2005). Lower court opinion can be found at 136 S.W.3d 481 (Mo. 2004) (en banc). ²⁰ Deck was originally convicted and sentenced to death by the same jury. However, on appeal, the Missouri Supreme Court upheld his conviction but set aside the sentence [68 S.W.3d 418, 432 (Mo. 2002)], requiring the state to proceed with a new sentencing proceeding.

²⁹ Id. at 2014. (A recent example of the type of tragedy alluded to was the March 11, 2005, courthouse shooting in Fulton County, Georgia. In that particular case, Brian Nichols was to appear before Judge Rowland Barnes. Prior to the day’s proceedings, Barnes overpowered two sheriff’s deputies and used one of their service weapons to kill Barnes and his court reporter. He then killed a sheriff’s deputy he encountered while escaping from the courthouse. Nichols was apprehended the following day.)

³¹ U.S. v. Hall, 349 F.3d. 1320,1324 (11th Cir. 2003). ³² Fourth and Ninth Circuits did not require the indictment to allege an overt act; Fifth and Eighth Circuits required proof of an overt act for conviction.

³⁵ 25 S. Ct. 687, 691 (“As we explained in Shabani, these decisions ‘follow the settled principle of statutory construction that, absent contrary indications, congress intends to adopt the common law definition of statutory terms.’”). settled principle of statutory construction that, absent contrary indications, congress intends to adopt the common law definition of statutory terms.’”).
³⁶ Id.
³⁷ Age Discrimination in Employment Act of 1967, Pub. L. 90-202, codified at 29 U.S.C. §§621, et. seq.
³⁸ 125 S. Ct. 1536 (2005). Lower court case can be found at 351 F.3d 183 (5th Cir.).
³⁹ 351 F.3d 183.
⁴⁰ 29 U.S.C. §623, commonly referred to as the RFOA provision.
⁴¹ See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). As a result of this decision Congress amended Title VII of the Civil Rights Act to address this burden of proof issue to expand the protections afforded employees under Title VII. However, Congress did not amend the ADEA. Accordingly, the Supreme Court held that the Wards Cove standard applies to the ADEA. See 125 S. Ct. at 1545.
⁴² Smith at 1545.
⁴³ Pickering v. Board of Education of Township High School Dist. 205 Will Cty., 391 U.S. 563 (1968).
⁴⁴ 461 U.S. 138 (1983).
⁴⁵ 356 F.3d 1108 (2004).
⁴⁶ Roe at .
⁴⁷ Id, citing Connick at 146-147.
⁴⁸ Id.
⁴⁹ Id.
⁵⁰ 604 S.E.2d 835 (Ga. 2004), cert. granted, 04-1067 (2005). ⁵¹ Unpublished, cert. granted, 04-1360 (2005). ⁵² 849 A.2d 410 (Md.App. 2004), cert. granted, 04-373 (2005).

⁵³ 361 F.3d 1168 (9^th Cir. 2004), cert. granted, 04-473 (2005).

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Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

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Bulletin Reports

Public Relations
The Bureau of Justice Statistics presents Contacts Between Police and the Public: Findings from the 2002 National Survey, which offers data on the nature and characteristics of contacts between officers and citizens of the United States over a 12-month period. Findings reflect results from a national representative survey of nearly 80,000 residents age 16 or older. Detailed information pertaining to face-to-face encounters wit the police includes the reason for and outcome of the contact, resident opinion on officer behavior during the incident, and whether polkc e used or threatened force. The report provides demographic characteristics of residents involved in traffic stops and use-of- force encounters and discusses the survey findings' relevance to the issue of racial profiling. Highlights inxluce the following: about 25 percent of the 45.3 million persons witha face-to-face contact indicated that the reason was to report a crime orther problem; in 2002, about 1.3 million residents age16 older—2.9 percent of teh 45.3 nillion persons analyzed—were arrested by police; and the likelihood of being stopped by officers in 2002 did not differ significantly aong drivers of different races, although police were more likely to carry out some type of search on an African American or Hispanic driver that a Caucasian. This report is available online at http://www.ojp.usdoj.gov/bjs/abstract/cpp02.htm

Corrections
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) offers Implementation and Outcome Evaluation of the Intensive Aftercare Program: Final Report, which presents the findings froma a 5-year multisite analysis of the OJJDP program, the goal of which is to reduce recidivism among high-risk parolees. This model postulates that effective intervention requires not only intensive supervision and services after institutional release but also a focus on reintegration during incarceration and highly structured and gradual transition between institutionalization and aftercare. This report is available online at http://www.ncjrs.org/pdffiles1/ojjdp/206177.pdf

Officer Watson

Officer DiMaria

One evening, Officers Ellis Watson and Joseph DiMaria of the Swissvale, Pennsylvania, Police Department responded to a building fully engulfed in flames. Two handicapped, elderly women were trapped in apartments on the second floor. Without air masks or protective clothing, Officers Watson and DiMaria entered and made their way through heavy smoke and flames to the upstairs apartments. After a search, the officers located the two victims and carried them both outside to safety. One of the women rquired her oxygen tank to remain in use, presenting a risk of explosion; the officers also removed two additional tanks to protect the firefighters that later would arrive. Both victims received treatment at a local hospital and were released. The selfless actions of Officers Watson and DiMaria saved the lives of these two Women.

Officer Espinola

Officer MacLaughlan

Officers Joseph Espinola and John MacLaughlan from the Lowell, Massachusetts, Police Department responded to a call of a man threatening to commit suicide by leaping from a bridge. Upon arrival, the individual already had jumped into the canal and was flainiling in the water, appearing tired. Officer Espinola immediately jumped into the canal, swam tothe victim, grabbed him, and helped him to catch his breath. Officer MacLaughlain also joined in the rescue, and the two officers worked their way back to the water's edge with the individual. With the help of fellow officers, the man was brought to safety. The victim and both officers then received medical attention. The brave actions of Officers Espinola and MacLaughlan saved this individual's life.

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A local 8th grade student won the Blount County, Tennessee, Sheriff’s Office’s patch design contest and saw his entry adapted for official use. The patch features a police canine and handcuffs, as well as representations of other elements of the county, such as industry, agriculture, air transportation, and the Great Smokey Mountains.	The patch of the Sequim, Washington, Police Department features the New Dungeness Lighthouse, the first in the Straight of Juan de Fuca-Puget Sound area. Serving a similar purpose, the department provides a beacon of safety to the community. The Olympic Mountains sit in the background.